Moss v. Smith

• Decision Date: 15 February 1906
• Citation: 53 S.E. 284,73 S.C. 231
• Parties: MOSS et al. v. SMITH et al.
• Court: South Carolina Supreme Court

53 S.E. 284

73 S.C. 231

MOSS et al. v. SMITH et al.

Supreme Court of South Carolina

February 15, 1906

Appeal from Common Pleas Circuit Court of Oconee County; Jas. A McCullough, Judge.

Action by Lem A. B. Moss and others against Fannie Smith and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Stribling & Herndon, for appellants. Jaynes & Shelor, for respondents.

GARY A. J.

This is an action for partition. The complaint alleges that Miles Moss died in January, 1901, leaving of force and effect his last will and testament; that the plaintiffs and defendants are his heirs at law; that during the lifetime of Miles Moss the defendants Miles A. Moss and Kay Moss by undue influence prevailed upon him to make to them deeds of conveyance to certain tracts of land while he was in feeble mind; but that the deeds were never delivered. The complaint prays that said deeds be delivered up and canceled. The defendant Miles A Moss in his answer alleges that Miles Moss, on the 25th of January, 1900, executed and delivered to him the deed of conveyance mentioned in his answer upon the consideration in part that he would render any assistance necessary in the support of said Miles Moss. The defendant Kay Moss, by his guardian ad litem, answered formally. The jury returned a verdict in favor of the defendants.

The sole question presented by the exceptions is whether his honor, the presiding judge, violated section 26, art. 5, of the Constitution, prohibiting judges from charging on the facts, when he said to the jury: "It may not be a manual delivery, and that is a very strong evidence of delivery." The other portion of the charge relating to this question is as follows: "The main inquiry is as to the delivery of those deeds. Were those deeds delivered by the grantor, old man Moss? Now, the law cannot deal with an undisclosed intention. You may make a deed with all the formalities of a deed, properly witnessed, and otherwise executed; the grantee may be named therein; but unless there is some act indicating your intention to vest the property, the law cannot look into your mind and see what you intend to do with that deed. But where a deed is signed sealed, and delivered, and the grantee is named in the deed the law seizes upon any act or word which expresses the intention of that party to vest the title in the grantee. It may not be a manual delivery, and that is a very strong evidence of delivery; but it is not necessary that one should take the deed and hand it into the hands of the other party. Any act or word, which at the time indicated his intentions--that that man's intentions were to part with the title, and to vest it...