Lee v. . Parker

WALKER, J., after stating the case: The court submitted the four issues as set forth in the statement of the case, and as now appears, by amendment of the record, a fifth issue was added, as to the statute of limitations. The first and third issues only were answered, under the final instruction of the court, that if they answered the first issue “No” they need not answer the other issues, as possession under color and,the statute of limitations would be immaterial. We had just as well dispose of this point in the beginning and before passing to a discussion of the principal question. *150 After the date of the alleged deed, Mary E. Wade continued in possession of the land, with her father, and the occupation was the same as it had always been. There was no claim of adverse possession, and nothing done to oust her or to assert title under the deed. The case, therefore, falls within the principle of Fowle v. Whitley, 166 N. C., 445, and Brown v. Brown, 168 N. C., 4, 13. The Court said in Fowle v. Whitley, supra: “There, is no act of disseizin shown. From all that appears, both continued to live on the land as prior to the sale, without any change in the attitude of the parties to the possession. There is no evidence of the exclusive possession or any acknowledgment on the part of Rowe.” There Warner had purchased under a tax deed, which he claimed to be color of title, but Rowe continued in joint possession with him. The facts in this ease are .stronger in favor of these plaintiffs, as here the parties were tenants in common; which requires an ouster to sever the tenancy. It would be straining the law to hold that there was any adverse possession by Clark Wade and the other grantees, during the life of Mary E. Wade, under the circumstances of this case. If there was such a possession either by Clark Wade and his associates or the defendant, who claims under them, after the death of Mary E. Wade, it cannot avail the defendant, as her heirs were infants, and one of them was not of age when the suit was brought and the other only 22 years old, so that the question of adverse possession under color is thus eliminated, even if it would not require such a possession for twenty years to bar the plaintiff’s right of entry as tenants in common. In this view of the case it is unnecessary to discuss the question as to color of title. The only matter we need consider is whether there was any error in regard to the first issue; for if the deed is void, and there is no other source of title, the plaintiffs are entitled to recover their share, as adjudged by the court. The execution of a deed includes signing, sealing, and delivery. It is unquestionably true that signing may be done either by the grantor affixing his own signature or by adopting one written for him, or by making his mark, or impressing some other sign or symbol on the paper by which the signature, though written by another for him, may be identified. He may, therefore, either sign himself or sign by the adoption of his name as written by another, or he may make his mark, even though he may not be able to write himself. Devlin on Deeds, sec. 237; Devereux v. McMahon, 108 N. C., 134. And the grantor may have the assistance of another to steady or direct his hand. Devlin, sec. 236 and notes; Carroll v. McGee, 25 N. C., 13. But the signature, if written by another, must be made at the request or with the consent of the grantor, and the delivery as well; and’ *151 whether there was a signing or a delivery by him is a question of fact, what act- is a sufficient signing or delivery being a question of law. It was said in Huddleston v. Hardy, 164 N. C., 210, quoting from Tarlton v. Griggs, 131 N. C., 216: “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 the grantee or some one for him. Both the intent and the act are necessary to the valid delivery. Whether such existed is a fact to be found by the jury.” And the same rule applies to the signing of the deed. If another acts for the grantor, he must do so at the request of the grantor, or he must be either expressly or impliedly authorized by him to affix his signature. .It is not sufficient that the grantor’s name is signed by a third party, unless he has authority in .some way conferred to act for him. Devlin on Deeds, sec. 232. The signing and delivery must be acts done by the grantor, either by himself or through the agency of another. Whether Mary E. Wade made her mark on the deed to Clark Wade, or J. L. Burton was requested to make it for her, is manifestly a question of fact for the jury, and it was for them to say whether it was her mark, or theirs alone. We think there were circumstances from which the jury could infer that she did not consent to the execution of the deed, either to the signing or -the delivery of it, and they had the right, as the authorities show, to consider all the attendant circumstances. The court, in its charge, gave the defendant the full benefit of the legal presumption arising from the probate and registration of the deed, and then instructed the jury, in accordance with the principles we have stated, that they must find as a fact whether the transaction in the room was conducted with her consent, or, in other words, whether she exercised her will at all, and signed and delivered the paper-writing with the intent that it should operate as her deed; and if she did so sign and deliver it as her deed, it was binding upon her, without regard to any question of fraud or duress, the simple matter being whether she executed it or not. “The question of the delivery of a deed is generally one of intention of the parties, and it is essential to a valid delivery that there should be some act or declaration from which an intention to deliver may be inferred. A formal delivery, however, is not essential; nor are express words necessary. Nor is a manual delivery of the instrument to the grantee required, it being sufficient if it is apparent either from the words or acts of the grantor that it was his intention to treat the deed as his and to make a delivery of the same.” Fitzgerald v. Goff, 99 Ind., 28. The court further instructed the jury that the plaintiffs must establish the negative of the issue by strong, clear, cogent, and convincing evidence. The mere fact that in one part of the charge the jury were told that if they found certain facts to have existed at the time of the *152 transaction tbe deed would in law be a forgery was not prejudicial to defendant, if erroneous, as they were also instructed bow to answer tbe issue in tbe event tbat they made sucb a finding. Tbe charge must be construed as a whole. Tbe complaint and answer sufficiently raised tbe issues submitted to tbe jury, and tbe. evidence was unobjectionable. We do not see why it was not relevant, as tbe witnesses deposed merely to tbe occurrences in tbe room, and it was competent to show them by oral testimony. As there was evidence to sustain tbe verdict, tbe motion to nonsuit and tbe prayers for instructions were properly denied. It was not necessary to inquire whether tbe deed was procured by fraud or duress, and whether defendant was a bona fide purchaser for value and without notice, when tbe jury bad found tbat it was not tbe déed of Mary E. Wade, because it bad never been executed by her, as it was a nullity. Henry v. Carson, 96 Ind., 412. It is there said, at p. 422: “A deed delivered without tbe knowledge, consent, or acquiescence of tbe grantor is no more effectual to pass title to tbe grantee than if it were a total forgery, although tbe instrument may be spread upon tbe record, and innocent purchasers are not protected. John v. Hatfield, 84 Ind., 75; Pom. Eq. Jur., 735, 779, 807, 821; Bigelow Fraud, 156; Austin v. Dean, 40 Mich., 386; Ramsey v. Riley, 13 Ohio, 157; Van Amringe v. Morton, 4 Whart., 382. These cases show tbat even if. tbe appellants purchased in good faith for a valuable consideration and without notice, such facts will not avail against tbe appellee; bis equities are at least equal to those of tbe appellants, and in equal equities *tbe legal title prevails.” See, also, Tisher v. Beckwith, 30 Wisc., 55, where it is said: “It is ■essential to tbe validity of a deed tbat it should be delivered, and sucb delivery to be valid must be voluntary, tbat is, made with tbe assent and in pursuance of an intention on tbe part of tbe grantor to deliver it, and if not so delivered it conveys no title.” It was held in Black v. Shreve, 13 N. J. Eq., 455, 457: “Until an instrument under seal is delivered by those who sealed it, or with their consent, it has no legal operation as a deed; delivery is essential for tbat purpose. It must go into tbe bands of tbe grantees or covenantees by tbe consent of tbe grantors or covenantors; possession acquired by force or finding, or in any other mode than by tbe full consent of tbe party to be bound, is ineffectual.” Tbe case of Abee v. Bargas, 65 S. W. Rep., 489, is in some essential respects like this one, and there tbe deed was held to be void. While we bold tbat tbe paper-writing claimed to be tbe deed of Mary E. Wade is a nullity, and cannot, therefore, operate as a deed for want of signing and delivery, which are component elements of sucb an instrument and essential to its valid execution, it is proper and just to, say tbat tbe defendant G. D. B. Parker appears not to have bad any knowl *153 edge of tbe circumstances and surroundings under which the said paper-writing was obtained; but, as we have shown, this fact cannot avail him as a defense. There was no error at the trial of the case. No error. Allen, J., did not sit in this case.