Opinion
No. 35714.
November 27, 1944. Suggestion of Error Overruled December 22, 1944.
1. DEEDS.
A valid conveyance presupposes a "complete delivery," which does not mean a mere manual possession of the document of conveyance, but transfer, as by livery of seizin, which constitutes a deliberate present investiture of title.
2. DEEDS.
If deed expresses a purpose to make a present investiture of title, such purpose is effected by a manual delivery of the deed.
3. WILLS.
Deeds which provided that they were not to be delivered during the lives of grantors but that deaths of grantors should constitute complete delivery thereof and that thereupon the land should immediately vest in fee simple in the grantees were testamentary in character and ineffective as deeds, and surviving grantor and widow of the legal owner was without power to amend the intention and purpose of her husband who had predeceased her.
APPEAL from the chancery court of Itawamba county, HON. ALVIS MITCHELL, Chancellor.
Brown Jarvis, of Fulton, and W.L. Elledge, of Washington, D.C., for appellants.
It is our contention that the deeds are testamentary in character and void, so-called death effect deeds, and not legally executed and authenticated as wills.
Herrington v. Herrington, 2 How. 701; Mims v. Williams, 192 Miss. 866, 7 So.2d 822; Ates v. Ates, 189 Miss. 226, 196 So. 243; Wall v. Wall, 30 Miss. 91; Hall v. Waddill, 78 Miss. 16, 27 So. 936; Wilson v. Bridgforth, 108 Miss. 199, 66 So. 524; Virginia Trust Co. et al. v. Buford et al., 123 Miss. 572, 86 So. 356; Belt et al. v. Adams, 125 Miss. 387, 87 So. 666; Cox v. Reed, 113 Miss. 488, 74 So. 330; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Griffin v. McIntosh, 176 Mo. 392, 75 S.W. 677; Kelly v. Richardson (Ala.), 13 So. 785; Culy v. Upham (Mich.), 97 N.W. 405; Code of 1906, Sec. 2762 (Code of 1942, Sec. 831), 2763; 16 Am. Jur., Deeds, Sec. 151; 2 Devlin on Real Estate (3 Ed.), p. 1585; 1 Tiffany on Real Property (3 Ed.), p. 340, Sec. 204.
James A. Finley, of Tupelo, for appellee.
Counsel for appellants bases his argument on the testamentary character of the conveyances, on the statements in each of them that "This deed of conveyance is not to be delivered or so considered delivered during the life of the said J.P. Riggs and his said wife, E.F. Riggs, but that the death of both of said grantors shall in all things constitute a full and complete delivery." Now I do not contend that the deaths of the grantors constituted delivery. Actual delivery was not only proven but admitted. The daughter-in-law of Mrs. E.F. Riggs testified that Mrs. E.F. Riggs, a few days before her death, called for her purse, took the keys from it and delivered them to the witness, saying, "Onie, there is some deeds there in my trunk that me and Pa have made to Gillie and Jim (appellees) to the place . . . when I pass away I want you to turn these deeds over to them, will you do that?", and the witness said, "Sure." It will be noted that the land in question was the homestead of J.P. Riggs and his wife. Both executed the deeds, but in order that the homestead rights of survivor should not be disturbed, it was provided that the deeds should not be delivered or considered delivered during the life of either of the grantors. Therefore, the widow and survivor of the grantors held the deeds until her last illness when she made delivery as set out above. At the close of this proof, counsel for complainants admitted delivery of the deeds but denied their validity. I do not contend that the death of the grantors constituted delivery of the deeds, but I do contend that when actual delivery is proven and admitted that provisions in the deeds become a nullity and yield to the facts. When a grantor recites in a conveyance that certain things will constitute delivery which will not be recognized by the law, surely that provision will not invalidate the conveyance for lack of delivery when actual delivery is shown by the proof. The evidence discloses that the deeds were locked in the trunk of the widow and survivor of the grantors and by her given to Mrs. J.R. Riggs to be delivered to the grantees after she had passed away. No one doubts the validity of the conveyance deposited by the grantor with a third person with instructions to deliver same to the grantee after the death of the grantor if the conveyance is delivered and accepted by the grantee.
Young v. Elgin (Miss.), 27 So. 595; Wilson v. Bridgforth, 108 Miss. 199, 66 So. 524; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; Ladner v. Moran, 190 Miss. 826, 1 So.2d 781; Fine v. Lasater, 161 S.W. 1147; Fulton v. Priddy, 81 Am. St. Rep. 201; Grilley v. Atkins, 112 Am. St. Rep. 152.
This suit was begun as a bill for partition of certain homestead lands in Itawamba County and for accounting of mesne rents and profits. The parties include the heirs-at-law of their deceased father, J.P. Riggs, the complainants being Mrs. M.N. Palmer and W.D. Riggs, and the defendants J.R. Riggs, J.E. Riggs and the latter's wife, Mrs. E.E. Riggs. Defendants filed answer with a cross-bill alleging the execution by J.P. Riggs of deeds to J.R. Riggs and J.E. Riggs respectively for separate portions of the lands. The chancellor upheld the deeds as valid and restricted the issues to this point.
By agreement of counsel the following pertinent facts appear: J.P. Riggs was owner of said lands at the time of his death intestate in 1921. His widow continued to live on the lands and died intestate in 1927. Both the purported deeds of J.P. Riggs to his sons are dated November 7, 1914, and filed for record December 6, 1919. They were executed by J.P. Riggs and wife, and are practically identical except as to the property described therein, and both contain the following recitals: "Know all men by these presents that we J.P. Riggs, and wife E.F. Riggs, for and in consideration of the natural love and affection we have for and do bear toward our son, J.E. Riggs, we hereby grant, bargain, sell and convey and warrant to him and to his heirs and assigns forever, with the exception hereinafter stated the following described land situated in Itawamba County, Mississippi, . . . It is herby agreed and understood by and between the grantors, J.P. Riggs and his wife E.F. Riggs, and the grantee J.E. Riggs, that this deed of conveyance is not to be delivered, or so considered delivered during the natural life of the said J.P. Riggs, and his wife E.F. Riggs, but the death of both of said grantors, shall constitute a full and complete delivery of this deed of conveyance, to said grantee, and the above described land shall immediately vest in fee simple in the said J.E. Riggs."
The narrow issue thus presented is whether the two instruments are valid deeds of conveyance or whether being testamentary in character and effect they passed no present interests to grantees.
It is elemental that a valid conveyance presupposes a complete delivery. This does not mean a mere manual possession of the document of conveyance but transfer as by livery of seizin which constitutes a deliberate present investiture of title. Such purpose if expressed in the instrument is of course effected by manual delivery. We must therefore look to the terms of the instruments to find the rights of both the grantor and the grantees. There was ample words of conveyance which would have constituted a valid deed to a present interest but for the grantors reservation "with the exceptions hereinafter stated." These exceptions are those above quoted. The grantor signed the instrument with the express limitation that it not only was not to be delivered during his life but was not to be considered (from any subsequent circumstance) to have been so delivered. If this language were not enough to preclude delivery during his life, he added that the death of both himself and his wife should constitute a full and complete delivery, and that the land thereupon "shall immediately vest in fee simple in the said" grantee.
The above language places the case squarely within the rule announced in Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892, 6 So.2d 318, where prior cases are collated. The instruments are therefore clearly testamentary in character and purpose and are ineffective as deeds. Their validity as deeds being the only issue here thus disposes of the case except for the appellees' contention that regardless of the grantors' original intention, the instruments were effectively delivered by the widow upon her death bed. The following testimony of the wife of J.R. Riggs is adduced to support the contention: "On Saturday before she (Mrs. J.P. Riggs) died on Monday, she called me to her bedside and told me to hand her her little satchel or purse — she called it — and to hand it to her and I handed it to her and she opened it and took out her keys and handed to me, and she said, "Onie, there is some deeds there in my trunk that me and Pa — that is my Father, — have made to Gillie and Jim to this place — we want Jim and Gillie to have and I can't be here long and when I pass away I want you to turn these Deeds over to them, will you do that. And I said, `sure'".
Without digressing to consider the competency of the testimony or its efficacy as a delivery or escrow, it is enough to say that the instrument was deliberately drawn to exclude the possibility of either a delivery or of any act which could be considered as such during the life of either J.P. Riggs or his wife. The widow was without power to amend the intention and purpose of the legal owner, her husband, who had predeceased her.
The decree adjudging the instruments valid deeds will be reversed, but because of the reservation of incidental issues the cause will be remanded.
Reversed and remanded.