Huddleston v. . Hardy

WALKER, J., concurring in result. Action to recover land. The plaintiffs are the heirs at law of A. F. Huddleston. The defendant claims under a deed from the said (211) A. F. Huddleston, and the question in controversy is whether there is any evidence of the delivery of this deed. During the trial of the cause the plaintiffs introduced as a witness one L.A. Haney, who testified as follows: That he had talked to old man Huddleston more than once about preparing a deed for him to sign to defendant; that on Sunday, 3 May, 1903, he went over to his house *Page 169 and asked him if he had prepared the deed; that he wanted to sign the said deed to Hardy and place it in his hands as an escrow; that on Monday, 4 May, the next day, he went to his (Huddleston's) house and wrote deed and he signed it and pushed or threw it across the table to witness, and told him there it was, and witness took deed and folded it up and laid it down and put inkstand on it, and then went on to talk about the history of his life for an hour and a half; that he (Huddleston) said he did not want Hardy put in possession to turn him off the land, and either Huddleston or witness suggested that witness had better put in writing what he was to do with the deed, when witness wrote the other paper dated 4 May, 1903, at his own suggestion, one and a half hours after Huddleston had signed deed. Then deceased (Huddleston) signed it. The deed and other paper were both witnessed by L. A. Haney and L. A. Owens. The deceased, at different times, told witness that he intended for Baxter Hardy, the defendant, to have the land. The other paper referred to it as follows: This writing witnesseth, that whereas A. F. Huddleston did on 4 May, 1903, execute and deliver a certain deed bearing even date herewith, made by said A. F. Huddleston to one A. F. Baxter Hardy, and whereas the said Huddleston is desirous of obtaining his support from land during his natural life: Now, therefore, he places the above described deed in escrow with one Lewis A. Haney to be delivered by the said Haney on the following conditions: 1st. The said L. A. Haney is to deliver the above described deed to A. F. Huddleston at any time at the request of said A. F. Huddleston. 2d. At the request of said A. F. Huddleston, the said Haney is to deliver the said deed to A. F. Baxter Hardy. (212) 3d. That immediately at my death the said L. A. Haney shall at once deliver the said deed to the said A. F. Baxter Hardy, should it not be delivered by him as above set forth before my death. In witness I have set my hand and seal, this 4 May, 1903. A. F. HUDDLESTON. His Honor instructed the jury if they believed the evidence to answer the first issue "Yes" and the second issue "No," to which the defendant excepted, and under this instruction the jury returned the following verdict: 1. Are the plaintiffs the owners of the land described in the complaint? Answer: Yes. 2. Was the deed to the defendant executed and delivered by A. F. Huddleston? Answer: No. *Page 170 Judgment was rendered in favor of the plaintiffs, and the defendant excepted and appealed. If there is any evidence of a delivery of the deed to Haney for the defendant, the ruling of his Honor is erroneous, and Weaver v. Weaver,159 N.C. 18, would be decisive in favor of the contention of the plaintiffs that there is no such evidence, if the paper-writing executed after the deed was signed, by which the control of the deed remained with the grantor, had been incorporated in the deed, or had passed from the grantor at the same time with the deed. It was held in the Weaver case that there is no delivery if the grantor reserves the right of recall, although the deed is placed in possession of a third person, to be delivered to the grantee at the death of the grantor, if not recalled; but the Court also quoted with approval from Tarlton v.Griggs, 131 N.C. 216, that, "There must be an intention of the grantor to pass the deed from his possession and beyond his control, and he must actually do so, with the intent that it shall be taken by grantee or some one for him. Both the intent and the act are necessary to (213) the valid delivery. Whether such existed is a question of fact to be found by the jury." The Court also approved Fortune v. Hunt, 149 N.C. 360, where it is said: "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." These authorities establish the following propositions: (1) If the deed is given to a third person for the grantee, and the grantor retains control of it and the right to recall it, there is no delivery. (2) If the deed is given to a third person for the benefit of the grantee and the grantor retains no control over it and no right to recall it, there is a delivery. (3) If the deed is once delivered, without the reservation of any control over it, the grantor cannot by any subsequent act of his defeat the rights of the grantee. (4) That the controlling test of delivery is the intention of the grantor to part with the deed and put it beyond his control, and that this intent is an issue of fact, to be passed on by a jury. *Page 171 Applying these principles, we are of opinion, not that the deed has been delivered, but that there is evidence of delivery which should be considered by a jury. The grantor told Haney the day before the deed was signed that he wanted to sign a deed to the defendant and place it in his (Haney's) hands as an escrow; on the next day, after signing the deed, he pushed or threw it across the table and said there it was, and Haney took it, folded it, and placed it under an inkstand, and in the paper executed one hour and a half later he recites that he "did execute and deliver" the deed. It also appears from the evidence that after the deed was signed and given to Haney, the grantor talked an hour and a half about the history of his life before the right to retain control of (214) the deed was suggested or considered. If the jury find upon this evidence that the grantor parted with the possession of the deed, intending at the time to surrender all power or control over it, there has been a delivery, which could not be affected by the execution of the paper thereafter. On the other hand, if the grantor did not part with the possession of the deed until after the second paper was signed, and it was left on the table while he and Haney were discussing his history and what was best to be done, or if it was not the intention of the grantor at the time he pushed or threw the deed to Haney to part with its possession and control, then there is no delivery. These are questions for the jury, and to the end that they may be considered, a trial before a jury is ordered. Reversed.