McMahan v. Hensley

• Decision Date: 03 December 1919
• Docket Number: 512.
• Parties: MCMAHAN ET AL. v. HENSLEY.
• Court: North Carolina Supreme Court

101 S.E. 210

178 N.C. 587

MCMAHAN ET AL. v. HENSLEY.

No. 512.

Supreme Court of North Carolina

December 3, 1919

Appeal from Superior Court, Yancey County; Webb, Judge.

Action by Annie McMahan and husband against Rachel Penland Hensley. From judgment rendered, the plaintiffs appeal. Affirmed.

Mother claiming that deed to daughter had never been delivered notwithstanding recordation, could prove that deed had never been in daughter's possession, but had remained in her (mother's) possession and had been brought back to her soon as it was recorded.

Civil action tried upon these issues:

(1) Were the deeds for the lands described in the complaint delivered? Answer: No.

(2) Are the plaintiffs the owners in fee and entitled to the possession of the lands described in the complaint? Answer No.

From the judgment rendered, the plaintiffs appealed.

Hudgins Watson & Watson, of Burnsville, for appellants.

Charles Hutchins, of Burnsville, and A. Hall Johnston, of Ashville, for appellee.

BROWN J.

As stated by Mr. Watson, the learned counsel for plaintiff, there is but one question presented by the record, and that is: Were the deeds from the defendant to her daughter, Annie McMahan, and her son S. S. Hensley, delivered?

The plaintiffs claim under the deed from the defendant, Rachel Penland Hensley, the mother of the feme plaintiff. The uncontradicted evidence tends to prove that the defendant procured Squire Hutchins to draw the deeds; one to her daughter the plaintiff, and the other to her son S. S. Hensley.

The defendant testified that she did not intend to deliver the deeds to the grantees; that she sent them to Burnsville by her youngest son, Andrew, to be probated and recorded; but that the deeds are now locked up in her trunk in her home; and that they have not been out of her possession since they were made, except when Andrew had them recorded.

The plaintiff offered no evidence except the official record of the deeds.

The court charged the jury:

"If the plaintiff has shown that the old lady made the deed under the circumstances that she says she did, that the magistrate came to her home and she was there very sick, and it was her purpose and desire to make the deeds, and she wanted to reserve her life estate, and it was suggested to her by the magistrate that she could do that by making the deed on its face without reservation and then holding the deeds or put them in the hands of some good man to be delivered to the grantees after her death; if you find she accepted that mode or method, and the deeds were drawn without reservation being set forth in the deed, and that, after being drawn, they were delivered to her by the drawer of the deeds, Squire Hutchins; if you find she put these deeds away, and the next day she heard one of her sons was going to try to interfere with this arrangement, with what she had done with her property, and try to get hold of the deeds; and if you find that for that reason she told her son to carry them to the clerk's office at Burnsville and have them probated and then have them recorded and to bring the deeds back to her, and that pursuant to those instructions her son brought the deeds and had them recorded and took them immediately back to his mother, and that she has had them ever since, and that her purpose and intent was not to deliver them until after her death--if you believe that, and find

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