Powell v. Powell

• Decision Date: 22 March 1928
• Docket Number: 8 Div. 989
• Citation: 116 So. 139,217 Ala. 287
• Parties: POWELL v. POWELL.
• Court: Alabama Supreme Court

116 So. 139

217 Ala. 287

POWELL v. POWELL.

8 Div. 989

Supreme Court of Alabama

March 22, 1928

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Action in ejectment by Charlcie Powell against P.T. Powell. From a judgment for plaintiff, defendant appeals. Affirmed.

Sample & Kilpatrick, of Hartselle, for appellant.

A.J Harris, of Decatur, for appellee.

GARDNER J.

Appellant and appellee are husband and wife, though living separate and apart, the wife having left the home of the husband in May 1922, and subsequently instituted this suit in ejectment against him to recover the land upon which they had resided. From a judgment for the plaintiff, the defendant appeals.

The first assignment of error argued by appellant rests upon the theory that notice or demand for possession on the part of the plaintiff was necessary to be shown in order to maintain the action under the circumstances of this case. Under the situation here presented, such demand was not essential. The defendant denies plaintiff's title, and insists he holds adversely and in hostility thereto. Under these circumstances previous demand is unnecessary. The law does not exact a useless procedure. 19 Corpus Juris, 1071; Alexander v Wheeler, 69 Ala. 332.

Upon the merits, the case turned upon the question of delivery of the deed executed by defendant to plaintiff while the former was in financial difficulties. The deed was written by one Price, acting for defendant, and before whom it was signed and acknowledged on December 19, 1912, and filed for record by Price for defendant in the probate office on the same day. Defendant insists he signed and acknowledged the deed on Price's advice that it would amount to nothing, and left it with him for record and to be returned to him, which he states was done, being forwarded by Price to him by mail; that his wife did not know anything about the transaction, and that he kept the deed in his trunk; that after the separation the plaintiff came back to the home and secured the deed from the trunk.

Plaintiff, on the other hand, insists that upon the deed being placed on record, it was returned to her by the probate judge; that she did not get it from defendant's trunk; that her husband told her about the transaction, and that if she would pay taxes on the land for ten years, then no one could take it away from her. For some of the years she paid the taxes and defendant assessed the land for taxes in her name.

The record of the deed was prima facie evidence of delivery, but which, of course, may be rebutted by proof tending to show that in fact no delivery was intended. 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; s.c., 162 Ala. 129, 50 So. 148; Loring v. Grummon, 176 Ala. 236, 57 So. 818; Coulson v. Scott, 167 Ala. 606, 52 So. 436.

If, however, the deed was never delivered to the grantee who is sui juris and placed on record by the grantor with no intention of delivery to the grantee, but only to mislead creditors, there would be no delivery and the deed would not operate as a conveyance. Loring v. Grummon, supra; Coulson v. Scott, supra. The following excerpt from Gulf Red Cedar Co. v. Crenshaw, supra, is here pertinent:

"The true test of delivery is not as to what was actually said or done or what became of the conveyance, but whether or not the grantor intended to reserve to himself the locus poenitentiae. If he did, there is no delivery and no present

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