Opinion
June Term, 1853.
1. If a conveyance of land be made to A. and B., and the deed delivered to A. without the knowledge of B., and he, upon information thereof from A., dissents therefrom, nothing passes to him by the deed, and he cannot maintain ejectment.
2. Whether the whole vests in A., or the deed is inoperative as to a moiety, Quere?
(The case of Respass v. Latham, ante, 138, cited and approved.)
THIS was an action of ejectment, tried at Spring Term, 1853, of CURRITUCK Superior Court, before Saunders, J.
Heath, with whom was Hines, argued:
Smith, contra.
The lessor of the plaintiff showed title under a deed to himself and the defendant, and made the other necessary proof. The defendant offered to show that he, the defendant, paid the purchase money for the land, and that he took the deed in the joint names of himself and the lessor, the lessor knowing nothing of the bargaining for the land, or the taking of the deed, nor of the payment of the money, until these facts were communicated to him by the defendant; also, that when they were so communicated, the lessor refused to have anything to do with the transaction. Upon exception, this evidence was ruled out. A verdict and judgment were then rendered for the plaintiff, and the defendant appealed to the Supreme Court.
1. If a deed be to two, and one dissent, the entire interest is in him who assents. 2 Spence's Eq., 351; Small v. Marwood, 9 B. and Cress., 307; Browell v. Reed, 1 Hare, 435. See, also, Hawkins v. Kemp, 3 East., 410; Cooke v. Crawford, 13 Sim., 96. Hence the deed vested the entirety in the defendant.
2. Whether this be so or not, still the plaintiff cannot recover, (342) for want of delivery. Repass v. Latham, ante, 138: The legal title is in either the grantor or the defendant. The plaintiff dissented, and therefore, to render the deed valid so as to pass any title, there must be another delivery.
The testimony offered by the defendant to show that when the plaintiff's lessor was informed of the purchase of the land in question, and of the deed therefor taken in joint names of the defendant and himself, he repudiated the transaction, and refused to have anything to do with it, was competent to show that he had disagreed to it, and therefore that as to him the deed had become void. A deed may be delivered to a stranger for the use of the grantee, or bargainee, and as it may be to his advantage, his acceptance of it will be presumed until the contrary appears; but as it may also be to his prejudice, or whether to his prejudice or not, he is not bound to accept it; he may disagree to it, and then it will become inoperative. Preston's Ed. of Shep. Touch., 70 (30 Law Lib., 142); Respass v. Latham, ante, 138. Cases in which it would be to the prejudice of a grantee or bargainee to accept the delivery of a deed, may be readily imagined — e. g., he may have a better title by descent, or under another deed, or the land may have been purchased for him without authority at too high a price, or the deed may have conditions inconvenient or burdensome. Surely under circumstances like these, he would be at liberty to disagree to a deed accepted for him by a stranger without his consent. The principle is the same where a deed is made to two persons, and delivered to one without the knowledge of the other. The latter may, upon being informed of it, disagree to it, and the deed as to him will be void. Whether his share will, upon such a disagreement, accrue to the other grantee or will return to the grantor, it is not necessary for us to decide. Preston's Ed. of Shep. Touch., ubi supra, 4 Leon., 207.
If the testimony offered in this case had proved to the satisfaction of the jury what was proposed to be proved by it, the plaintiff's lessor would not have been entitled to recover. It was therefore error (343) to reject it, and the judgment must be reversed, and a venire de novo ordered.
PER CURIAM. Judgment reversed, and venire de novo awarded.
Cited: Gaither v. Gibson, 61 N.C. 532.