Napier v. Elliott
| Decision Date | 15 June 1909 |
| Citation | 162 Ala. 129,50 So. 148 |
| Parties | NAPIER ET AL. v. ELLIOTT. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Action by Minnie Elliott against B. E. Napier and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Espy & Farmer, for appellants.
E. H Hill, for appellee.
This cause comes here on appeal for the third time. Napier v Elliott, 146 Ala. 213, 40 So. 752, 119 Am. St. Rep. 17; Napier v. Elliott, 152 Ala. 552, 44 So. 552. The issue has been the same on each trial; and that is, whether the deed in question was ever delivered. The assignments of error relate solely to the rulings of the court on the admission and rejection of evidence.
On the first appeal (146 Ala. 213, 40 So. 752, 119 Am. St. Rep. 17) it was said by this court, speaking through Denson, J "It is settled law that the fact of delivery rests in intention, and it is to be collected from all the acts and declarations of the parties having relation to it"--citing authorities. As a circumstance bearing upon the question of intention as to the delivery of the deed, it was competent for the defendants to show that at the time of the making of the deed, and contemporaneous therewith, the grantor made two other deeds to Lem Walden and Josiah Hughes embracing all the lands the grantor had left after the deeds to the plaintiff and her mother, and the further fact that the deeds to Walden and Hughes were never delivered. This evidence when taken in connection with other evidence as to the purpose of the grantor in the making of the deeds to evade his creditors, and that he was at the time advised that the making of the deeds and the placing of the same himself on record would not constitute a delivery, actual delivery of plaintiff's deed being a disputed fact, was both competent and relevant as tending to negative the grantor's intention of delivery of plaintiff's deed. The weight of it, however, and as to whether, in connection with all of the evidence in the case, it was sufficient to negative such intention, was a question for the jury. The trial court erred in not admitting the evidence.
Evidence as to statements and declarations made by the grantor several years after the making of the deed to the plaintiff was not competent to show the intention of the grantor at the time the deed was made. The cases of Scheiffelin v Scheiffelin, 127 Ala. 35, 28 So. 687, and Law v. Law, 83 Ala. 432, 3 So. 752, cited and relied on by counsel for appellant, were contested will cases. Wills never take effect until after the death of the testator, and any act of the testator in connection with his will accompanied by a declaration...
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Riley v. Srofe
...facts otherwise properly established is not prejudicial. Simmons v. Cochran et al., 252 Ala. 461, 41 So.2d 579; Napier et al. v. Elliott, 162 Ala. 129, 50 So. 148; Farmers' Mut. Ins. Ass'n of Alabama v. Tankersley, 13 Ala.App. 524, 69 So. 410; Chenault v. City of Russellville, 233 Ala. 60, ......
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...v. Alexander, 71 Ala. 295; Cherry v. Herring, 83 Ala. 458, 3 So. 667; Fitzpatrick v. Brigman, 133 Ala. 242, 31 So. 940; Napier v. Elliott, 162 Ala. 129, 50 So. 149; Rickert v. Touart, 56 So. 708. But the point difficulty is in determining what act or acts on the part of the grantor will be ......
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Henslee v. Henslee
... ... Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 So. 812; Napier v. Elliott, 146 Ala. 213, 40 So. 752, 119 Am.St.Rep. 17; Napier v. Elliott, 177 Ala. 113, 58 So. 435; [Id.] 162 Ala. 129, 50 So. 148; Loring v ... ...
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...purpose, or where the execution of all the deeds is inconsistent with an intent to deliver the deed in question. Ibid.; Napier v. Elliot, 162 Ala. 129, 131, 50 So. 148; Metz v. Metz, 106 S.C. 514, 518, 91 S.E. 864; Mitchell v. Allen, 81 S.C. 340, 344, 61 S.E. 1087; cf. Jennings v. Reeson, 2......