Summary
noting action to cancel deed involved legal and equitable issues and holding question of delivery of a deed is a jury question
Summary of this case from Donnan v. MarinerOpinion
14386
November 30, 1936.
Before BELLINGER, J., Kershaw, June, 1935. Reversed and remanded for new trial.
Action by Mildred Godfrey against Margaret Godfrey. From an adverse judgment, the plaintiff appeals.
Trial Court's order overruling demurrer to the defendant's answer, requested to be reported, follows:
This matter comes before me on plaintiff's demurrer to the answer of the defendant, and the allegations contained in the answer must be deemed to be true in considering the demurrer.
This is an action brought to set aside a deed made by the plaintiff, Mildred J. Godfrey, to the defendant, Margaret Godfrey.
The plaintiff and the defendant are not related. The defendant is a sister of the late C.W. Godfrey, who resided at Charlotte, in the State of North Carolina, and who died there on May 25, 1934. The plaintiff was not related to the said C.W. Godfrey, but was taken by himself and his wife as a ward when she was a child and reared and educated by them. She continues to live with the widow of C.W. Godfrey at Charlotte, N.C.
The said C.W. Godfrey owned and controlled a holding company known as Family Investment Corporation. The land in question, which is a lot in the city of Camden, Kershaw County, S.C. was held in the name of the corporation. On May 7, 1932. the said C.W. Godfrey caused a deed to said lot to be made by said Family Investment Corporation to the plaintiff, Mildred J. Godfrey. Ten days thereafter, and on the 17th day of May, 1932, the said land was conveyed by deed of the said Mildred J. Godfrey, the plaintiff herein, to the defendant, Margaret Godfrey, said deed being delivered to the said C.W. Godfrey, who had it recorded in the office of the Clerk of Court for Kershaw County, S.C. on the 12th day of April, 1933, approximately a year after its execution. The said C.W. Godfrey, as above stated, died on May 25, 1934, and in the early part of 1935 the plaintiff brought her suit against the defendant, the said Margaret Godfrey, for a cancellation of the deed upon the grounds as alleged in the complaint that she did not understand the purpose or legal effect of the execution thereof by her, that there was no consideration for the conveyance, and that there was no delivery of the deed. The defendant alleges that plaintiff paid no consideration whatever for the conveyance of the property to her by Family Investment Corporation and admits that no consideration was paid by her, the defendant, to plaintiff for the conveyance by the plaintiff to the defendant. The defendant further alleges in her answer that inasmuch as the title to the property vested in plaintiff for only ten days it was never intended that the title to said real estate should ever finally vest in plaintiff, but that it was placed temporarily in her name to be thereafter conveyed as a gift by the said C.W. Godfrey to defendant.
As above stated, the deed from the plaintiff to the defendant was caused to be recorded by the said C.W. Godfrey in the office of the Clerk of Court for Kershaw County, S.C. and said deed from plaintiff to defendant was kept by him in his safe deposit vault and there found after his death.
In passing upon the demurrer we will first consider the question of the lack of consideration, whether or not a lack of money consideration will avoid a conveyance.
No fraud or duress is alleged by plaintiff in her complaint, neither does she allege that she was suffering from any mental or physical infirmities which might render her unable to understand what she was doing when she executed the deed.
"Where fraud is not put in issue by the pleadings in an action to set aside a conveyance of real estate under seal, and there is no evidence of fraud, it is not error to reject evidence as to whether the consideration has been paid, since the only effect would be to show that the deed was without consideration, which cannot be shown where it is under seal." Cook v. Cooper, 59 S.C. 560, 38 S.E., 218.
"Grantor cannot assail deed under seal solely for lack of consideration." Baynard v. Ulmer, 153 S.C. 100, 150 S.E., 610.
"A grantor cannot impeach his deed on the sole ground that it was without consideration." Brown v. Brown, 44 S.C. 378, 22 S.E., 412.
"A deed is good without any consideration." Knighton v. Desportes Mercantile Company, 119 S.C. 340, 112 S.E., 343.
It would, therefore, seem that the demurrer cannot be sustained because of a lack of consideration for the conveyance.
The next and more serious question raised by the demurrer is on the question of a delivery of the deed. It appears that there was no actual physical handing of the deed by the plaintiff to the defendant, but it does appear that C. W. Godfrey, the man who had control of the property, who had it conveyed by his corporation to his ward, who was no kin to him, and who ten days thereafter procured her to make a deed of the property to the defendant, Margaret Godfrey, who was his sister, took the deed, had it duly recorded in the public registry of the county in which the land is situated, and retained possession of the deed until his death. It will be remembered that the plaintiff paid no consideration for the conveyance of the property to her and that the title thereto vested in her for a period of only ten days, while it has been vested in the defendant since the 17th day of May, 1932.
"Delivery of a deed to a proper officer to record, is such a delivery as consummates the deed." Ingram v. Porter, 4 McCord, 198.
"When grantor delivered to the scrivener deeds in which his children were grantees, held, that there was a valid delivery." Watson v. Cox, 117 S.C. 24, 108 S.E., 168, 170.
"A deed of conveyance, signed, sealed and recorded, will be considered as delivered, there being nothing to the contrary, except the absence of the conveyee at the time." McDaniel v. Anderson, 19 S.C. 211.
"There is no prescribed form for the delivery of a deed; if it appears from all the facts and circumstances that the gift was complete, without any conditions or qualifications annexed, and without anything more remaining to be done, it is a valid delivery, and a perfect deed, although left in the hands of the donor." Harris v. Saunders, 2 Strob. Eq., 370, note.
"Where the grantor parts from a deed at its execution, that is a delivery of it; so if he retains the custody of it, but delivers it to a justice to take the proof of its execution, and afterwards to the proper offices for the recording of deeds, where it is recorded, this will be sufficient evidence of the delivery, to pass the interests conveyed to the grantees, though the grantor became repossessed of the original deed, and it is found among his papers after his death." Dawson v. Dawson, Rice, Eq., 243.
Where a purchaser of land had the deed made to another, a delivery of the deed to the purchaser was sufficient to vest title in the grantee named." Larisey v. Larisey, 93 S.C. 450, 77 S.E., 129.
Counsel for plaintiff contended ably and strongly in their arguments that the fact that it was admitted that there was no conversation between the plaintiff and the defendant relative to the transaction at the time thereof had the effect of discounting a delivery of the deed, constructive or otherwise, or any intention so to do, but the cases above cited appear to dispose of that contention adversely to the contenders.
As I am at present advised, I am convinced that the question as to whether or not there was such a delivery of the deed as to vest the title to the property in the grantee is, under all the facts and circumstances as outlined by the complaint and the answer, one for the jury under proper instructions from this Court.
Whether a deed has been delivered is a question for the jury. Shaw v. Cunningham, 16 S.C. 631.
"The question of delivery of deeds is for the jury where under the evidence more than one inference can be drawn." Patterson v. Causey, 119 S.C. 12, 111 S.E., 725.
I listened, with a great deal of interest, to the oral arguments delivered by counsel for the opposing parties and have carefully considered the briefs filed and the authorities cited, and after due consideration, for the reasons above given, I am impelled to the conclusion that the demurrer should be overruled, and it is so ordered.
Messrs. Fred B. Helms, Mercer J. Blankenship and Wittkowsky Wittkowsky, for appellant, cite: Appeal from order overruling demurrer: 136 S.E., 231; 139 S.C. 324; 138 S.E., 34. Evidence: 64 C.J., 138; 58 So., 172. Speculative testimony: 55 S.C. 568; 84 S.C. 283; 67 N.E., 633; 159 S.C. 446; 157 S.E., 621; 119 Ga. 358; 46 S.E., 438; 12 S.C. 32; 47 S.C. 488; 88 S.C. 346; 114 S.C. 517. Agency: 169 S.E., 188; 125 S.C. 457; 188 S.E., 817; 189 N.C. 77; 126 S.E., 112; 38 L.R.A. (N.S.), 941; 87 N.E., 388; 237 Ill., 255. In order to be a delivery there must be an intention to deliver and an act of delivery: 45 S.C. 46; 22 S.E., 757; 44 S.C. 364; 23 S.C. 89; 119 S.C. 134; 112 S.E., 78; 8 R.C.L., 978; 141 S.C. 9; 82 S.C. 264; 44 S.C. 364; 108 S.E., 110; 12 Rich., 387; 101 S.C. 125; 85 S.E., 241; 12 Rich., 387; 14 Rich. Eq., 68; 4 McC., 238; 95 S.C. 450. Fraud: 64 S.C. 49; 157 N.W., 282; 12 L.R.A. (N.S.), 102; 240 Fed., 983; 254 Fed., 829; 53 S.C. 173; 18 L.R.A., 858; 201 F.W., 880; 7 A.S.R., 583; 43 S.C. 318; 85 Ky., 160; 157 S.E., 721.
Messrs. Murdoch M. Johnson and J. Team Gettys, for respondent, cite: Equity jurisdiction: 9 C.J., 1160; 33 S.C. 39; 25 S.C. 585; 79 S.C. 420; 9 S.C. 147; 16 S.C. 331; 12 S.C. 108; 62 S.C. 274; 73 S.C. 173; 62 S.C. 274; 40 S.E., 670; 52 S.C. 389; 93 S.C. 451; 4 R.C. L., 499; 29 S.C. 116. Consideration: 59 S.C. 560; 153 S.C. 100; 56 S.C. 154; 119 S.C. 340.
November 30, 1936. The opinion of the Court was delivered by
This is an action brought by Mildred Godfrey, plaintiff-appellant, against Margaret Godfrey, defendant-respondent, to cancel or mutilate the purported deed from Mildred Godfrey, as grantor, to Margaret Godfrey, as grantee, which appears in the public registry of Kershaw County, S.C. and which purports to convey a vacant lot in the business section of Camden, S.C. on the grounds that appellant never intended to execute the purported deed to the respondent, and never intended to convey the property in question to the respondent, and never recorded, or caused the purported deed to be recorded, in the public registry of Kershaw County, S.C. and that there has been no legal delivery of the purported deed, and no valid conveyance of the property described therein.
The appellant alleged, and the respondent admitted, there was never any conversation, correspondence, or agreement whatever between the appellant and the respondent with reference to the conveyance of the land in question.
The appellant alleged, and the respondent admitted, that nothing whatever was paid to the appellant by the respondent as consideration for the conveyance.
The respondent alleged that the property in question was actually owned by Charles W. Godfrey (since deceased), who was the foster father of the appellant, and who was also the brother of the respondent. The respondent further alleged that the appellant, Mildred Godfrey, merely held title in trust for the purpose of conveying the land in question to the respondent as a gift from the said Charles W. Godfrey.
The appellant demurred to the answer of the respondent on the grounds that the allegations therein contained did not constitute a defense to the appellant's cause of action.
The presiding Judge overruled the demurrer, and the case having proceeded to trial before a jury on the law side of the Court, resulting in the trial Judge directing a verdict for respondent, comes to this Court on appeal, the exceptions alleging error in overruling the demurrer; in the admission and exclusion of testimony during the trial; in denying appellant's motion for a directed verdict; and in directing a verdict for respondent and not submitting the issues to the jury.
Appellant's first exception is directed to the refusal of the trial Judge to sustain the demurrer to the answer.
The answer denies the material allegations of the complaint and affirmatively alleges a constructive delivery of the deed to respondent; the delivery of the deed being the major issue raised by the pleadings. The trial Judge, in a well-considered order, which will be reported, properly overruled the demurrer, and the exception thereto cannot be sustained.
Appellant's Exceptions 10, 11 and 12 will be considered together. Exception 10 alleges error in the refusal of the trial Judge to direct a verdict in favor of appellant. Exception 11 alleges error in directing a verdict for respondent, and Exception 12 alleges error in not submitting the case to the jury, in that there was evidence to go to the jury on the question of appellant's intention to deliver the deed; the actual delivery of the deed; the question of whether or not C.W. Godfrey was in fact agent for the respondent; the question of whether or not the parties were in pari delicto; and the question of whether or not the appellant came into the equity with clean hands, in view of her status with reference to her dependency upon C.W. Godfrey and her gratitude to him.
When it becomes necessary to remand a case for a new trial, it is the policy of this Court to discuss the testimony as briefly as possible, and if it is feasible to refrain entirely from a discussion thereof, this will be done. This case is such a one.
It was docketed on Calendar No. 1, and tried as a law case before the presiding Judge and a jury without objection; and the action involves the title to real estate. There are both legal and equitable issues, and the relief sought on the equity side of the Court is dependent upon the issues of fact to be decided in a Court of law.
In the order overruling the demurrer, the trial Judge cited and quoted from Shaw v. Cunningham, 16 S.C. 631, and Patterson v. Causey, 119 S.C. 12, 111 S.E., 725, to the effect that the question of the delivery of a deed is one which must be submitted to a jury if more than one inference can be drawn. Since this order is to be reported, we will not again quote the language of these cases. In connection, see case of Powers v. Rawls, 119 S.C. 134, 112 S.E., 78, 85, in which we find the following: "Delivery of a deed includes, not only an act by which the grantor evinces a purpose to part with the control of the instrument, but a concurring intent thereby to vest the title in the grantee. 8 R. C.L., 760; Carrigan v. Byrd, 23 S.C. 89; Johnson v. Johnson, 44 S.C. [364], 373, 22 S.E., 419; Harrison v. Dunlap, 96 S.C. [389], 392, 80 S.E., 619."
We have carefully reviewed the testimony herein, and are constrained to hold that more than one reasonable inference can be drawn therefrom, and that therefore it was necessary for the trial Judge to submit the issues to the jury.
Exception 10 is overruled, but Exceptions 11 and 12 are sustained.
Appellant's Exception 2 alleges error in refusing to allow appellant to offer in evidence the purported deed from appellant to respondent for the restricted purpose of attack, and not be bound by the instrument itself as evidence generally.
Appellant should have been allowed the privilege of introducing the deed for the restricted purpose, on the same theory or principle that where a litigant is compelled to use a witness in the proof of the execution of an instrument of writing, he can call such witness for this restricted purpose, and not be bound by other testimony of such witness. However, when the deed was introduced, appellant and the trial Court treated it as having been introduced for this restricted purpose, and therefore this error was harmless.
We deem it unnecessary to consider the other exceptions, but will state in passing that as to Exceptions 4, 6 and 7, the admission and exclusion of testimony is largely within the discretion of the trial Judge, and his rulings thereabout will not be disturbed unless amounting to an abuse of discretion.
The testimony was not objected to on the ground that it was incompetent under the Statute of Frauds, and will not be considered here. As to being objectionable under Section 692 of the Code, we think this position untenable. This Section (692), provides in substance that no party to an action shall be examined in regard to any transaction between such witness and a person at the time of such examination deceased, as a witness against a party then prosecuting or defending the action as "executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, * * * when such examination * * * can in any manner affect the interest of such witness." The testimony comes within every provision of the statute, with one exception. The testimony offered and admitted in evidence, while being against a party then prosecuting the action, the party so prosecuting the action was not doing so either as executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, or survivor of the deceased person.
Reversed and remanded for a new trial.
MR. CHIEF JUSTICE STABLER, MESSRS. JUSTICES BONHAM and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE A.L. GASTON concur.