Tarwater v. Going

• Decision Date: 31 May 1904
• Citation: 37 So. 330,140 Ala. 273
• Parties: TARWATER v. GOING ET AL.
• Court: Alabama Supreme Court

37 So. 330

140 Ala. 273

TARWATER v. GOING ET AL.

Supreme Court of Alabama

May 31, 1904

Appeal from Chancery Court, Jefferson County.

Bill by Mary E. Tarwater against John S. Going and others to set aside a deed as a cloud on title. From a decree dismissing the bill, complainant appeals. Affirmed.

J. H Savage and Smith & Smith, for appellant.

SHARPE J.

According to the averments of the amended bill, Mills and Going, having no authority from complainant to sell her land, pretended to her that they had sold it to Perkins; that she was legally bound to make a deed for the land to him, and that a bill was being prepared for filing which would force her to sign such deed. Through fear of such threat of litigation, and acting under advice and persuasion of her husband, complainant signed a deed, and Mills and Going, without authority to do so, delivered same to Perkins without his paying the consideration therein named. After this suit was commenced and before the last amendment thereof, Perkins conveyed the land to Fort by a deed purporting to antedate the commencement of this suit. These acts of defendants are alleged to have been done in pursuance of a conspiracy on their part to defraud complainant. It is further alleged that the lands have never been in possession of defendants, or either of them; that they are "in the woods, and uninclosed, and in the actual possession of no one." Assuming the truth of these averments, the instrument called a deed, never having been delivered to Perkins by complainant or by her authority, was ineffective to divest her of title. Delivery is essential to the complete execution of a deed and a mere deposit of a writing complete in other respects as a deed with a person other than the one named as grantee or his agent, when unaccompanied with any intention of passing title, is not a delivery such as is necessary to constitute a deed. Ashford v. Prewitt, 102 Ala. 264, 14 So. 663 48 Am. St. Rep. 37. Nor will an unauthorized transfer of the possession of such writing from such third person to the named grantee constitute such delivery. Fuller v Hollis, 57 Ala. 435; Henry v. Carson, 96 Ind. 412; Harkreader v. Clayton, 56 Miss. 383, 31 Am. Rep. 369. No conveyance being alleged, it is unnecessary to consider whether the conduct charged against defendants would, if resulting in a conveyance, furnish ground for restoring title to complainant. The special prayer in the bill...