Opinion
(February Term, 1897.)
Deed — Delivery — Cancellation of Deed.
1. When the maker of a deed delivers it to some third party for the grantee, parting with the possession of it, without any condition or any direction to hold it for him, and without in some way reserving the right to repossess it, the delivery is complete and the title passes at once, although the grantee may be ignorant of the facts, and no subsequent act of the grantor or any one else can defeat the effect of such delivery; hence,
2. Where a donor signed and sealed a deed of gift and delivered it to a deputy of the Superior Court Clerk with instructions to have it proved by the subscribing witness before the Clerk, who was then absent, and to have it registered, and shortly after, and before probate, the maker took the deed from the deputy, saying he had changed his mind about the delivery owing to some displeasing conduct of the grantee. Held, That the delivery was complete on delivery to the deputy, notwithstanding the fact that the grantee knew nothing of the deed until after its recall.
ACTION tried before Robinson, J., and a jury at Fall Term, 1896, of BERTIE. The action was instituted by the plaintiff, as the alleged grantee of Thomas Gilliam, to have the defendants declared trustees of and to convey certain lands to the plaintiff for life, with remainder in fee to her children, according to the limitations in a deed alleged to have been made and delivered by said Gilliam, and subsequently destroyed. The facts appear in the opinion of the Court. From a judgment for the plaintiff the defendants appealed.
Messrs. Martin Peebles for plaintiff.
Mr. Francis D. Winston for defendants (appellants).
The natural father of the plaintiff executed a deed signed and sealed conveying property to the plaintiff, and "delivered said deed to the deputy clerk of the Superior Court of Bertie County, with instructions to have the same proved by the subscribing witness before the clerk of said court, who at the time was absent from his office, and to have the same duly registered," and some time thereafter, before any probate was had, without plaintiff's knowledge or consent, the grantor took the deed from the deputy clerk and carried it away from the office, stating that he had changed his mind about the delivery of the same, and after his death his executor destroyed the deed. Plaintiff knew nothing (81) of the deed or of its recall. The court held that the delivery was complete, and the title passed. Exception and appeal. This is the only question in the case, the defendant denying that there had been a delivery.
Upon principle and the authorities, we must affirm the judgment The principle is that when the maker of a deed delivers it to some third party for the grantee, parting with the possession of it, without any condition or any direction to hold it for him, and without in some way reserving the right to repossess it, the delivery is complete, and the title passes at once, although the grantee may be ignorant of the facts, and no subsequent act of the grantor or any one else can defeat the effect of such delivery.
In Threadgill v. Jennings, 14 N.C. 384, it is stated that, "A deed is good if delivered to a stranger to the use of the obligee" and "at the time it was thus delivered."
In Tate v. Tate, 21 N.C. 26, David Tate executed a deed of bargain and sale conveying land to his infant children, and delivered the deed to their uncle, Hugh Tate, in whose possession it remained until his death, when the bargainor went to the widow of Hugh Tate and obtained the deed before it was registered, and canceled it by tearing off his signature, and that of the witness, and he, David Tate, conveyed the same property to another. The delivery of the deed was upheld, the Court saying, "Where the maker of a deed parts from the possession of it to anybody, there is a presumption that it was delivered as a deed for the benefit of the grantee, and it is for the maker to show that it was on condition, as an escrow. Such a delivery to a third person is good, and the deed presently operates, and infants may assent to such a deed to themselves, and their assent is presumed until the contrary appears" — citing several English cases.
In Kirk v. Turner, 16 N.C. 14, Henderson, J., says: "A delivery of a deed is in fact its tradition from the maker to the (82) person to whom it is made, or to some person for his use; * * * for his acceptance is presumed until the contrary is shown. It being for his interest, the presumption is, not that he will accept, but that he does."
In Morrow v. Alexander, 24 N.C. 388, a father residing in South Carolina signed and sealed a deed to his daughter residing in North Carolina, and delivered it in South Carolina to his son to be given to his daughter; held by this Court that the delivery to his son was complete and the title passed. Gaskill v. King, 34 N.C. 211, sustains and cites Tate v. Tate, supra.
In McLean v. Nelson, 46 N.C. 396, the Court says: "When one delivers a deed to a third person in the absence of the grantee, the latter is presumed to accept it, so that it forthwith becomes a deed, and the legal effect is to pass the property. This presumption may, of course, be rebutted by proving that the party refused to accept it; but until he refuses, his assent is presumed for the purpose of giving effect to the instrument as a deed. Ut res magis valeat quam pereat."
In Phillips v. Houston, 50 N.C. 302, the donor signed and sealed the deed and delivered it to Holland, the witness, "and requested him to take it to the courthouse and have it recorded," which was not done until after the donor's death; it was held that the delivery to the first person (Holland), was perfect, and it made no difference whether it was registered before or after the donor's death, the Court saying: "In the case of Hall v. Harris, 40 N.C. 303, it was said by the Court that the delivery of a deed depends upon the fact that a paper signed and sealed is put out of the possession of the maker. That, we think, is the true test and, if it appear that the grantor or donor has parted with the possession of the instrument to the grantee or donee, or to any other person (83) for him, the delivery is complete, and the title of the property granted or given thereby passes. But it will be otherwise if the grantor or donor retains any control over the deed: as if he, when he hands it to a third person, requests him to keep it and deliver it to the person for whom it is intended, unless he shall call for it again. These principles will be found to govern all the cases, beginning with Tate v. Tate, 21 N.C. 22 — and then a large number of North Carolina cases are cited."
This principle has governed this court to the present time. Helms v. Austin, 116 N.C. 751; Frank v. Heiner, 111 N.C. 74.
The case of Adams v. Adams, 21 Wall., 185, is well argued by the Court, and the same conclusion arrived at. It is there stated upon the ancient authorities that if A execute a deed to B and deliver it to C, though he does not say to the use of B, yet it is a good delivery to B if he accepts of it, and it shall be intended that C took the deed for him as his servant — that it is conclusive unless there be clear and decisive proof that he never parted, nor intended to part, with the possession of the deed. There are some decisions in the States holding otherwise, but they are not in harmony with the higher and better authorities. Parmalee v. Simpson, 5 Wallace, 81, was a controversy between a grantee and mortgagee, and was decided in conformity to the laws of Nebraska. Hawkes v. Pike, 105 Mass. 560, is a decision to the contrary, but the annotator of 4 Kent's Com., calls attention to this case as out of line with the better decisions.
In Hedge v. Drew, 12 Pick., 141 (Mass.), the grantor left the deed with the register to be recorded, his daughter being the grantee. The deed was dated 2 October, 1823, and was recorded 3 October, (84) 1823. An attachment was levied on the same property on 4 October, 1823. The Court held unanimously that the delivery was equivalent to an actual delivery to the grantee personally.
In the case before us, that the grantor intended a delivery and that the title should pass at the time he put the deed in the hands of the deputy clerk, with instructions to have it probated and registered, is manifest from his statement, when he took the deed from the deputy clerk, saying, "that he had changed his mind about the delivery of the same, owing to some conduct of the plaintiff that displeased him."
Affirmed.