Weisinger v. Cock

• Decision Date: 05 May 1890
• Citation: 67 Miss. 511,7 So. 495
• Court: Mississippi Supreme Court
• Parties: JULIA WEISINGER v. MATTIE COCK ET AL

7 So. 495

67 Miss. 511

JULIA WEISINGER v. MATTIE COCK ET AL

Supreme Court of Mississippi

May 5, 1890

April 1890

FROM the chancery court of Tunica county, HON. W. R. TRIGG Chancellor.

The facts are stated in the opinion of the court. It is only necessary to add that Jacques, after receiving the deed from J. E. Stone, kept it as directed, and that the said Stone did not return, but died while in Florida, whereupon Jacques delivered it to J. W Stone, the grantee therein named.

Decree reversed and demurrer overruled.

Powel &amp Powel, for appellant.

There was no delivery of the deed; it never passed beyond the control of the grantor. This was not a delivery, to take effect upon a condition. Davis v. Williams, 57 Miss 843; Harkreader v. Clayton, 56 Ib. 383.

Delivery of a deed after the death of a grantor, though in pursuance of his previous request, is inoperative. Baldwin v. Maultsby, 5 Ired. [N. C.] 505.

If this delivery is good, a man may convey his homestead and defeat the rights of his wife by delivery of the deed after his death. See Moseley v. Anderson, 40 Miss. 49.

Perkins & Percy, for appellees.

1. The allegation in the bill, "never intending to part with the possession or control of said deed while he lived," is a conclusion of law and not an averment of fact.

2. The bill is contradictory. In one place it states that the grantor never intended to part with the possession or control of the paper, and in another, that he intended that the deed should be delivered if he never returned. This shows clearly that the control depended on a future contingency, returning alive.

3. The grantor's intention ought to be effectuated. The solemn acknowledgment that he had delivered the deed, followed by the immediate placing of it in the hands of a third person, are facts from which must be determined his intentions.

The Mississippi doctrine, following Doe v. Knight, 5 Barn. & Cress. [11 Eng. Corn. Law] 671, is that the possession and control amounts to nothing if there has been a delivery, and that delivery is a question of intention.

The case of Baldwin, v. Maultsby, 5 Ired. 505, is squarely in conflict with Davis v. Williams, 57 Miss. 843.

The case of Belen v. Carter, 4 Day [Conn.], 66, is on all fours with this.

OPINION

COOPER, J.

Complainant exhibited her bill in this cause against the heirs at law of J. W. Stone, to cancel as a cloud upon her title a certain deed under which the defendants claim title to the lands described therein. She states that her husband, J. E. Stone was the owner of said lands, and died leaving no children, whereupon said lands descended to her as his sole heir-at-law. The facts in reference to the execution of the deed sought to be cancelled, as stated in the bill, are that in October, 1882, the said J. F. Stone prepared, or had prepared, a deed conveying said hinds to his father, J. W. Stone, which deed he put among his private papers in the safe, of which, as clerk of the chancery court of Tunica county, he had control, where it remained until some time thereafter, when the said J. E. Stone and complainant were about to start on a visit to the state of Florida because of the ill health of her said husband. At that time J. E. Stone sent to his office for the deed, and acknowledged its execution before a proper officer; and, this being done, he handed the deed to one Jacques, his deputy, who had charge...