Napier v. Elliott

• Decision Date: 28 April 1906
• Citation: 40 So. 752,146 Ala. 213
• Parties: NAPIER ET AL. v. ELLIOTT.
• Court: Alabama Supreme Court

40 So. 752

146 Ala. 213

NAPIER ET AL. v. ELLIOTT.

Supreme Court of Alabama

April 28, 1906

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

"To be officially reported."

Action by Minnie Elliott against B. E. Napier and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

Espy &amp Farmer, for appellants.

E. M Hill, for appellee.

DENSON J.

The only question presented by this record for determination is whether or not declarations of a grantor made at the time he signs and acknowledges a deed are competent to be given in evidence on the question of delivery vel non of the deed. Delivery is a necessary incident to the due execution of a deed. Without delivery it can never take effect. The record in this case shows there was no actual delivery; that the deeds were deposited by the grantor with the probate judge to be recorded, soon after they were signed; and after they were recorded they were returned to the possession of the grantor. He remained in possession of the lands until his death, and after his death the deeds were found in his trunk amongst his other papers, and were never in possession of the grantees.

Registration is not conclusive evidence of delivery, but it may be rebutted by other evidence. 1 Dev. on Deeds, § 292, and authorities cited in notes 4 and 5; Alexander v Alexander, 71 Ala. 295; Elsberry v. Boykin, 65 Ala. 336; Wells v. American Mortgage Co., 109 Ala 430, on page 443, 20 So. 136; Gulf Red Cedar Lumber Co. v. O'Neal, 131 Ala. 117, 30 So. 466; Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500; Id., 133 Ala. 242, 31 So. 940; Lewis v. Watson, 98 Ala. 479, 13 So. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82; Blight v. Schenck, 10 Pa. 289, 51 Am. Dec. 478.

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. Boykin v. Smith, supra; Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500. This being true, it would seem to follow that declarations of the grantor, made contemporaneously with the signing and acknowledgment of the deed and explanatory of the subsequent act of the grantor in having the deeds spread on the record, would be competent on the disputed question of delivery. Gregory v. Walker, 38 Ala. 26; McLure v. Colclough, 17 Ala. 96; Law v. Law, 83 Ala. 432, 3 So. 752; 2 Wharton on Ev. (2d Ed.) § 930.

On the facts disclosed by the record we are of the opinion that the court erred in not allowing the defendants to offer evidence of the declarations of the grantor. The case is distinguishable from that...