Opinion
September 9, 1938
Present, All the Justices
QUIETING TITLE — Cancellation of Deed — Wrongful Recording — Cancellation as to Infant Grantee — Case at Bar. — In the instant case, a suit to set aside a deed, appellant conveyed a remainder interest in his home to his two nephews, one of whom was an infant. The deed was placed in a trunk, appellant expressing an intention to deliver the deed at his pleasure, because of his wish to retain control of his home until later in life. The deed was fraudulently and secretly removed by the adult nephew and appellant's former wife and placed of record. Appellant contended that the deed was never delivered and constituted a cloud on his title, but the lower court refused to set aside the deed as to the infant nephew and dismissed the case as to him.
Held: That since the deed was never delivered by appellant no title passed from him and, therefore, he was entitled to prevail even though one of the proposed grantees was an infant.
Appeal from a decree of the Circuit Court of Washington county. Hon. Walter H. Robertson, judge presiding.
Reversed.
The opinion states the case.
L. P. Summers, for the appellant.
No appearance for the appellees.
On August 9, 1933, J. L. Johnson, the petitioner in this cause, made a deed conveying the remainder interest in his home place to his two nephews, Frank Johnson and William Walter Johnson, the latter an infant. The deed was properly signed and acknowledged, and he placed it in a trunk in his home along with other valuable papers. At the same time he expressed an intention to deliver the deed at his pleasure, because he wanted to retain control of his home until later in life.
Subsequently, the appellant discovered that this deed had been taken from his trunk and placed of record in the clerk's office at Abingdon, Virginia. An investigation disclosed that his former wife and one of his nephews, Frank Johnson, both adults, had surreptitiously obtained the deed from his trunk and had it recorded.
The appellant contends in this court that the deed was never delivered and now constitutes a cloud upon his title.
The lower court refused to set aside the deed as to William Walter Johnson, the infant, and the bill was dismissed as to him.
The gist of the bill of complaint is the fraud of the former wife of the appellant and his nephew, Frank Johnson. They fraudulently and secretly removed the deed from the trunk and placed it of record. The deed had never been delivered by the appellant. Since there had been no delivery, no title passed from the appellant. Therefore, we are of the opinion that J. L. Johnson is entitled to prevail even though William Walter Johnson, one of the proposed grantees was an infant. The transaction was void on account of the fraud and neither of the nephews acquired any interest in the property through it.
The case is flagrant and amply justifies the application of general equitable principles.
The decree is reversed and a decree will be entered here setting aside the deed as to both grantees.
Reversed.