Carroll v. . Smith

AlleN, J. Tbe evidence of tbe widow was objected to under section 1631 of the Eevisal, but she did not testify to a communication or transaction "with tbe deceased (Johnson v. Cameron, 136 N. C., 243) nor was her evidence against tbe personal representative of tbe deceased or against any one claiming under tbe deceased. Bunn v. Todd, 107 N. C., 267.’ She simply told what she saw, and against one claiming under Henry Carroll and not under Albert Carroll. "We can see no objection to tbe evidence of George Melvin, and none is shown in tbe brief. He is not a party to tbe action, has no pecuniary interest in tbe result, and was not testifying to a self-serving declaration, but -to ope made against interest, and before tbe defendants acquired any title. *206 There is authority for the position taken by the defendant, that there is a presumption that a deed found in possession of the grantor has not been delivered; but properly understood, this can mean no'more than that the burden of proof is on the grantee to prove delivery, and we must assume that his Honor charged correctly as to the burden of proof, as the charge is not sent to this Court, and there is no exception that-he did not do so. Delivery is essential to the validity of a deed, and, in the absence of registration, if the deed is found in possession of the grantor, nothing else appearing, the law says it has not been delivered, and casts the burden of proof on the grantee who al-a delivery, and it adds no additional force to the charge on the burden of proof to say there is a presumption against delivery. There is, however, evidence in this case of a delivery to the grantee, and it was, therefore, proper for his Honor to charge that possession of the deed by the grantor, if found to exist, was a circumstance which the jury could consider. In Tuttle v. Rainey, 98 N. C., 513, there was a controversy as- to the delivery of a deed, and the Court said, while commenting upon an instruction given to the jury: “If it was intended to-say that the law presumed a delivery from the possession of the deed, instead of that the law authorizes the jury from the fact to infer a delivery, and, in the absence of rebutting evidence, to act upon it, it would be error.” We are therefore of opinion, on the whole -record, there is No error.