Wilbourn v. Wilbourn

• Decision Date: 13 December 1948
• Docket Number: 36827.
• Citation: 204 Miss. 206,37 So.2d 775
• Court: Mississippi Supreme Court
• Parties: WILBOURN v. WILBOURN.

37 So.2d 775

204 Miss. 206

WILBOURN v. WILBOURN.

No. 36827.

Supreme Court of Mississippi

December 13, 1948

Stone & Stone, of Coffeeville, for appellant.

John Horan, of Water Valley, and Barnett, Barnett & Jones, of Jackson, for appellee.

ALEXANDER, Justice.

In our opinion herein we held that there was not only a delivery of the deed, but also an intention to effect same. It is assigned for error that our holding does violence to Lynch v. Lynch, 121 Miss. 752, 83 So. 807, and Barner v. Lehr, 190 Miss. 77, 199 So. 273, 277. We distinguished the former case as resting solely upon the presumption arising from recordation. The latter case is cited to support the contention that 'Where the delivery of a deed is placed in issue, the burden of proof rests upon the party asserting delivery.' It is argued that we were in error in stating herein that 'appellee's burden to show an intention not to effect delivery is not supported by the preponderance of the evidence.'

Here, the complainant, appellee, alleged non-delivery, and this was therefore part of his affirmative burden. In Barner v. Lehr, supra, delivery was alleged in the defendant's cross-bill. Where non-delivery is alleged, the burden of non-delivery is on the one claiming non-delivery. 26 C.J.S., Deeds,§ 183.

Overruled.