Turlington v. . Neighbors

Denny, J. The first assignment of error is to findings of fact numbered two and five. These findings of fact are to the effect that Virginia A. Turlington, owner of the lands in controversy, acknowledged the deeds in question 13 February, 1926, before Jesse B. Lee, Notary Public for Harnett County, and delivered said deeds to the grantees therein named, on the same day they were acknowledged. The second assignment of error challenges the competency of the evidence of Ernest Neighbors, father of the defendant, Eay Neighbors, on the ground that his testimony is inadmissible by reason of the provisions of C. S., 1195. Unquestionably the first assignment of error cannot be sustained if the testimony of this witness is competent. The witness testified substantially, as follows: That his first wife, Pearl Neighbors, died 16 December, 1928. She was the daughter of Virginia A. Turlington, who died 12 February, 1942. Sheriff Byrd came to his *696 bouse oil tbe 12th or 13th day of February, 1926, and inquired if Mrs. Virginia A. Turlington was there. She was there and he heard Sheriff Byrd tell her he had the deeds ready for her, and that she had to take them before a Notary Public and have them signed. Sheriff Byrd delivered the deeds to Mrs. Turlington. Mrs. Turlington and his wife, Pearl Neighbors, took the deeds to Dunn that day to have them signed. When Mrs. Turlington returned she said she had signed the' deeds and gave them to Pearl and she read them in his presence and in the presence of Mrs. Turlington. About a year later Mrs. Turlington came back and asked if the deeds had been recorded, and, upon finding they had not, said “She had better have Stewart Turlington take them to Lillington and have them recorded.” The witness testified he had been blind for 27 years. There is nothing in the testimony of this witness relative to the execution of the deeds in question that discloses a personal transaction or communication between the witness and the deceased, if we should concede him to be an interested party. Abernathy v. Skidmore, 190 N. C., 66, 128 S. E., 475, and the cases there cited. But, the witness has no interest or title in the property conveyed to bring his testimony within the prohibitions of C. S., 1795. His wife died prior to the termination of the life estate, and his son, Ray Neighbors, is the sole owner of the property and the witness has no curtesy in the land conveyed. In re Dixon, 156 N. C., 26, 72 S. E., 71. The evidence was properly admitted and neither of these exceptions and assignments of error can be sustained. The third assignment of error is to the refusal of the court to permit Sidney Turlington, the grantee in one of the deeds, to testify as to when the deeds were made. We think his evidence on this question clearly inadmissible. Suppose his Honor had found upon his evidence that the deeds in question had been signed, sealed and delivered more than two years prior to their registration, as required by the-statute; then the testifying witness would inherit a one-fifth undivided interest in the lands conveyed to Pearl Neighbors. The objection was properly sustained. C. S., 1795; Allen v. Allen, 213 N. C., 264, 195 S. E., 801; Honeycutt v. Burleson, 198 N. C., 37, 150 S. E., 634. However, if the evidence had been competent, plaintiffs could not complain, for the witness was afterwards permitted to testify without objection that the deeds were signed the 8th day of January, 1926, and delivered on that date. The evidence is conflicting as to the date of delivery. His Honor’s findings of fact that the deeds in controversy were acknowledged and delivered on 13 February, 1926, are supported by competent evidence, and therefore binding on appeal. Hill v. Lindsay, 210 N. C., 694, 188 S. E., 406; Assurance Society v. Lazarus, 207 N. C., 63, 175 S. E., 705; Harrison v. New Bern, 193 N. C., 555, 137 S. E., 582; *697 Buchanan v. Clark, 164 N. C., 56, 80 S. E., 424. Tbis exception cannot be sustained. Tbe remaining exception presents tbis question: What is included in tbe execution or making of a deed? “A deed is consummated by its delivery by tbe grantor and its acceptance by tbe grantee and becomes operative from tbat time. In other words, wben tbe time of delivery is established, tbe time wben tbe deed took effect is also established as a matter of law.” 16 Am. Jur., sec. 321, p. 620. We find in 7 Thompson on Real Property, see. 3830, tbe statement tbat “Tbe ‘execution’ of a deed means tbe making thereof, which includes all such acts as signing, sealing and delivering.” Ordinarily, a deed is presumed to have been delivered on tbe date appearing in tbe deed; tbe presumption, however, continues only in tbe absence of proof as to actual time of delivery, and if such proof is presented tbe presumption is rebutted and tbe execution of tbe deed must then be referred to tbe time wben tbe testimony shows tbat tbe grantor parted with its possession for tbe purpose of giving effect to it, and in such manner as to deprive him of tbe right to recall it. 8 R. C. L., sec. 73, p. 1015. “Tbe execution of a deed means tbe making thereof, and includes all acts which are necessary to give effect thereto.” 26 C. J. S., sec. 32, p. 224. In tbe case of Newlin v. Osborne, 49' N. C., 157, tbis Court said: “Tbe delivery of a deed is tbe final act of its execution. It is tbat which gives it force and effect, and without which, it is a nullity. Wben a deed is said to be executed, tbe meaning is, tbat, with all tbe other requisites, it has been delivered by tbe one party to, or for, tbe other. Tbe date of a deed which is proved to have been delivered at tbe same time, is prima facie evidence tbat it was executed on tbat day; Lyerly v. Wheeler, 34 N. C., 290. Tbis evidence may be rebutted by proof tbat it was not delivered on tbat day, and its execution must then be referred to tbe time wben tbe testimony shows tbat tbe grantor parted with tbe possession for tbe purpose of giving effect to it, and in such a manner as to deprive him of the right to recall it; Baldwin v. Maultsby, 27 N. C., 505; Roe v. Lovick, 43 N. C., 88; Kirk v. Turner, 16 N. C., 14.” Buchanan v. Clark, supra; In re Cunningham, 64 E. (2d), 296. C. S., 3315, reads as follows: “All deeds of gift of any estate of any nature shall within two years after tbe making thereof be proved in due form and registered, otherwise, shall be void, and shall be good against creditors and purchasers for value only from tbe time of registration.” Tbe “making” of a deed referred to in tbe foregoing statute, means tbe date of its execution. Tbe execution of a deed is not complete until tbe instrument is signed, sealed and delivered. Tbe judgment below is Affirmed.