King v. Crocheron

CHILTON, J. The refusal of the circuit judge to charge, that under all the evidence, the jury should find for the defendant below, cannot be revised by us, as the bill of exceptions, which must be construed most strongly against the party excepting, does not purport to set out all the proof. No presumptions or intendments adverse to the correctness-of the judgment can be indulged. Morrison v. Morrison, 3 Stew. Rep. 444; McBride v. Norman, 7 Ala. Rep. 19. Neither was any question raised in the court below upon the sufficiency, or legal effect of the deed from Terry to Grant. True, the consideration is stated in the deed to have been five dollars, and- there was some proof of a negative character that that sum was not paid, but it is not shown that all the proof respecting the consideration is set out in [827] the record, so that we are not prepared to pronounce upon its legal effect. The parties seem to consider it as subsisting, and the charge of the court respects the effect of the indorsement of cancellation made upon it. The deed to Grant, then, vesting in him whatever title Terry had, (and we will presume the title to be a legal one, as Terry had the actual possession at the time of such conveyance,) the land was subject to the judgment against Grant, rendered on the 19th of December, 1845, unless it was re-conveyed to Terry, or passed out of Grant by his writing on the back of said deed, made the 30th January, 1845. This written indorsement on the back of the deed is in the following words: “Selma, 30th January, 1846. “ I hereby return and relinquish the within deed to John M. Terry, and authorize the same to be transferred upon record. Given under my hand and seal. H. M. Ghant, [seal.]” It is shown by the bill of exceptions, that at the time of the execution of this writing, the plaintiff below had possession of the land, under his deed, containing full covenants of warranty from Terry. ' The case turns upon the effect of this transfer ; for if it did not divest Grant of title, Dunham acquired it by his purchase under the sheriff’s sale. The instrument contains no words by which the title can pass, but is merely a 1! return and relinquishment of the deed,” and an authority to make a similar transfer upon the record where it is registered. This is doubtless, as between the parties to the instrument, a cancellation of the deed ; but does it divest Grant of title, so as to prevent the lien of a judgment subsequently acquired, from attaching ? There are some authorities which hold that the destruction of a title deed operates so as to re-vest the title in the grantor in the estate. In Commonwealth v. Dudley, 10 Mass. Rep. 403, it is held, that a grantee, holding an unrecorded deed, and who sells to a third party, may cancel his conveyance, by an arrangement with his grantor, and thus render effectual a subsequent conveyance made by his grantor to such third party at his request. To the same effect is Holbrook v. Terrill, 9 Pick. Rep. 105; Thompson v. Ward, 1 N. Hampshire Rep. 9; Ib. 145; 4 Ib. 191, Barrett v. Thorndike, 1 Greenl. Rep. 73. [828] On the other hand, this court has held that the cancellation of the deed will not re-vest the title in the grantor, and this doctrine seems to be sustained by the weight of authority, both in this country and in England. See Mallory v. Stodder, 6 Ala. Rep. 801; Botsford v. Morehouse et al. 4 Conn. Rep. 550; Coe et al. v. Turner and wife, 5 Conn. Rep. 86 ; Gilbert v. Bulkley, Ib. 262; Jackson v. Gould, 7 Wend. R. 364; Co. Litt. 225, b.; Jackson v. Chase, 2 Johns. Rep. 84; Lewis v. Payne, 8 Cow. Rep. 71; Marshall v. Fisk, 6 Mass. Rep. 24; Chessman v. Whittemore, 23 Pick. Rep. 231; Roe v. Archbishop of York, 6 East, 86; Bolton v. Bishop of Carlisle, 2 H. Black. 259; Doe v. Bingham, 4 B. & Ald. 671; Rayner v. Wilson, 6 Hill’s Rep. 469, 472, note a, where the authorities are collected ; Morgan v. Elam, 4 Yerg. R. 375. We come, then, to the conclusion, that the title was not divested by the cancellation of the deed, and remaining in Grant, it\vas subject to be levied upon and sold for his debts. The deed having been duly registered, was notice to the plaintiff, who took a subsequent deed from Terry, and the fact that possession was never transferred to Grant, can make no difference, as our statute of uses renders the deed effectual without livery of seizin. Clay’s Dig. 156, <§> 35. It results from what we have said, that the circuit court having refused to charge the jury, that the indorsement on the back of Terry’s deed to Grant did not re-convey Grant’s title back to Terry, committed an error, for which, the judgment must be reversed, and the cause is remanded.