Russell v. May

• Decision Date: 11 November 1905
• Citation: 90 S.W. 617,77 Ark. 89
• Parties: RUSSELL v. MAY
• Court: Arkansas Supreme Court

90 S.W. 617

77 Ark. 89

RUSSELL v. MAY

Supreme Court of Arkansas

November 11, 1905

Appeal from Clark Circuit Court; JOEL D. CONWAY, Judge; affirmed.

Judgment affirmed.

J. O A. Bush, for appellant.

Though the recording of a deed is prima facie evidence of its delivery, yet it is not conclusive, and may be overcome by positive evidence that there was, in fact, no delivery. 18 Law. Ed. U. S. S.Ct. 262; Ib. 542; 19 N.J.Eq. 357; 49 N.J.Eq 510; 161 Mass. 381; 105 Mass. 560; 19 Col. 371; 2 Houston (Del.), 246; 185 Ill. 101; 150 Ind. 465; 2 Am. St. Rep. 72; 35 Am. Rep. 166; 7 Ib. 554; 37 Am. Dec. 135; 14 Ib. 369; 63 Ib. 235; 31 Ib. 563; 13 L. R. A. 716; 65 S.W. 973; Tiedeman on Real Prop. § 812.

C. C Hamby, for appellees.

Actual manual delivery is not necessary. The intention of the grantor at the time the deed is executed controls. 21 Wall. (U.S.), 185-6; 2 Iredell's Eq. (N. C.), 360; 1 Devlin on Deeds, § 262, and citations; 2 Jones on Real Prop. § 1276. Delivery is not necessary where the grantee is under disabilities, or is the beneficiary. Tiedeman, Real Prop. § 814; Thornton, Gifts and Advancements, §§ 174, 175; 63 Ark. 374; 25 Ark. 225. The conveyance being for the benefit of grantee, formal acceptance was not necessary; and knowledge by the grantee of its execution, prior to the death of the grantor, is not essential. 51 Ark. 530; 68 P. 607; 1 Devlin on Deeds, § 287, and citations.

OPINION

BATTLE, J.

John Russell, William Russell, Frank Russell, and Walter G. Russell brought an action against Charlie May, Lula May, John Bell, and Martha Bell, to recover possession of certain lands. They allege that William Russell was the owner of the lands in his lifetime; and that he died intestate on the 31st day of January, 1900, leaving them his only heirs, and Malissa Russell, his widow, him surviving; and that Malissa Russel died sometime in September, 1900.

The defendants answered, and denied that the plaintiffs are the owners of the lands, or entitled to the possession thereof; and alleged that William Russell was the owner of the lands, but that he conveyed the same to his wife, Malissa Russell, on the 27th day of January, 1900, and departed this life on or about the 31st day of January, 1900; and that Malissa Russell died, leaving them, the defendants, her only heirs.

The issues were tried by the court, a jury being waived. The court found for the defendants, and rendered judgment in their favor for the land. No bill of exceptions was filed. The following is a copy of the judgment rendered:

"Come all the parties in person and by their respective attorneys and, a jury being waived, the issues are submitted to the court, sitting as a jury, and the court, after hearing the evidence and argument of counsel, is of opinion and finds the facts to be as follows: That the plaintiffs are the only heirs at law of William Russell, deceased; that on the 27th day of January, 1900, the said William Russell was the owner in fee of the lands described in the plaintiffs' complaint, towit: the west half of the southwest quarter of section 32, township 8 south, range 22 west, in Clark County, Ark., and the north half of the northeast quarter of section 6, township 9 south, range 22 west, in Pike County, Arkansas; that on the said 27th day of January, 1900, the said William Russell executed two deeds conveying said lands to Malissa Russell, his wife; that, after signing and acknowledging said deeds, the grantor left them with the notary public before whom they were acknowledged, with instructions to have them recorded, and paid him the money to pay for the recording, and to give them to no one but himself, and stated that he would return in a few days and get them. The said William Russell died on the 31st day of January, 1900, and never returned for the deeds. The notary public, on or before the 30th day of January, 1900, mailed the deeds above referred to to the recorders of the proper counties for record, and they were received by the said recorders on the 6th day of February, 1900, and recorded on that day. After they were returned to the notary public, they were, on the 10th day of February, 1900, delivered by him to the grantee, Mrs. Malissa Russell. The said Malissa Russell did not know of the existence of the deeds until they were delivered to her by the notary public. The court finds that the said deeds are genuine, and not forgeries, and that it was the intention of the said William Russell, when he executed the said deeds and caused the same to be recorded, to convey to his wife, Malissa Russell, a good and perfect title to the said lands above described. The court further finds that the defendants are the sole heirs at law of the said Malissa Russell, and hold under her, and that the said Malissa Russell died in September, 1900.

"The court declares the law to be as follows: That, under the proof and facts in this case as are herein found, the making acknowledging and having the deeds in question recorded...