Cannon v. . Blair

Ervin, J. When an action is tried by the court without a jury pursuant to the provisions of G.S. 1-184, the findings of fact of the trial judge are conclusive, and are not subject to review on appeal, in the absence of exceptions that they are not supported by evidence. Best v. Garris, 211 N. C. 305, 190 S. E. 221; Buchanan v. Clark, 164 N. C. 56, 80 S. E. 424. Although it is questionable whether such position can be sustained on the record in the case at bar, it is assumed here that the plaintiffs reserved appropriate exceptions to the findings of fact adverse to them on the ground that such findings were not supported by evidence at the trial. Eley v. Railroad, 165 N. C. 78, 80 S. E. 1064. When thus construed, the record presents these inquiries concerning the trust indenture of 21 September, 1932 : 1. Was there evidence at the trial to support the finding that David H. Blair, as grantor, delivered this instrument to the grantees? 2. Was there testimony at the trial to sustain the finding that David H. Blair, as grantor, executed this document for a valuable consideration? In our opinion, both of these questions must be answered in the affirmative. The trust indenture had been signed, sealed, acknowledged, probated, and recorded when it was offered in evidence. Hence, there was sufficient evidence to warrant the finding that this instrument was duly delivered by David II. Blair in his capacity as a grantor. This is true because the probate and registration of a deed raise a rebuttable presumption of delivery. Bank v. Griffin, 207 N. C. 265, 176 S. E. 555; Gulley v. Smith, *611 203 N. C. 274, 165 S. E. 710; Best v. Utley, 189 N. C. 356, 127 S. E. 337; Faircloth v. Johnson, 189 N. C. 429, 127 S. E. 346; McMahan v. Hensley, 178 N. C. 587, 101 S. E. 210; Lee v. Parker, 171 N. C. 144, 88 S. E. 217; Smiihwick v. Moore, 145 N. C. 110, 58 S. E. 843; Helms v. Austin, 116 N. C. 751, 21 S. E. 556. As was said in Wetherington v. Williams, 134 N. C. 276, 46 S. E. 728; “The fact of registration is not conclusive as to either the execution or the probate of the deed. The factum of the instrument may he disputed after its registration, and the party who assails the deed may show, if he can, that it was not in fact delivered. But as long as the probate and registration stand unimpeached and unimpaired, they furnish sufficient prima facie evidence of the execution of the deed, which, of course, always includes delivery. He who would avoid this presumption, arising from registration, must do so by proof sufficient to rebut it or to repel its legal force and effect.” The presumption of delivery resulting from the registration of the trust indenture of 21 September, 1932, arose in this case notwithstanding the prior death of David LI. Blair. Linker v. Linker, 167 N. C. 651, 83 S. E. 736; Fortune v. Hunt, 149 N. C. 358, 63 S. E. 82. It is familiar law that “where a deed has been registered, whether after or before the death of the grantor, it is presumed to have been delivered, and the burden shifts to the other side to rebut that presumption.” Rogers v. Jones, 172 N. C. 156, 90 S. E. 117. We are not inadvertent to the testimony indicating that, the trust indenture was found among the papers of David H. Blair after his death. This evidence was not incompatible in any degree with the finding that the deed vas delivered by David LI. Blair during his lifetime. Lie reserved a life estate in the property covered by the deed. Moreover, he was one of the trustees who acquired legal title to the remainder in such property under the conveyance. In consequence, he was entitled to the possession of the deed and was interested in its preservation subsequent to its delivery as much as any other person on earth. Ratione cessante cessat ipsa lex. Both authority and reason declare that a presumption of nondelivery of a deed does not arise from the finding of it among the grantor’s effects on his death when he reserved an interest in the property or was otherwise lawfully entitled to its possession after its delivery. Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Smith v. Adams, 4 Tex. Civ. App. 5, 23 S. W. 49. The court properly found from the face of the trust indenture itself that the conveyance of the one-seventh undivided interest of David LL Blair in the Abigail Blair tract was founded on a valuable consideration. This instrument was correctly construed in the supplemental finding of fact. In return for his interest, David LI. Blair acquired some legal rights in the property to which he would not otherwise have been entitled. *612 Exum v. Lynch, 188 N. C. 392, 125 S. E. 15; Railroad v. Ziegler Brothers, 200 N. C. 396, 157 S. E. 57; Grier v. Weldon, 205 N. C. 575, 172 S. E. 200. Moreover, the beneficial interest accruing to his son, David TI. Blair, Jr., was a sufficient consideration for the conveyance. Institute v. Mebane, 165 N. C. 644, 81 S. E. 1020. The conclusions set out above compel an affirmance of the judgment declaring that Adelaide Cannon Blair and John Fries Blair, as surviving trustees, hold title to the property in dispute under the indenture of 21 September, 1932. This makes it unnecessary for us to express any opinion as to the validity of the deed of 26 July, 1946. The judgment rendered in the Superior Court is Affirmed.