McHugh v. O'Connor

STONE, C. J. We have travelled with care through the mass of conflicting and unsatisfactory testimony found in this record, and we have encountered great difficulty in ascertaining facts we can feel safe in trusting and acting on. Making the most we can of the inextricable tangle; we have reached the conclusions, first, that during her life, Mrs. Murray delivered to complainant, Bridget 0’Cou.nor, the mortgage she held on John O’Connor, the latter’s husband, with the intention of giving it to her; and, second, that she did not deliver the note to her. These ascertained facts fall short of a valid gift of the [245] claim slie held on the mortgaged land; and under several rulings of this court, we feel constrained to hold the attempted gift must fail for want of delivery.—O'Connor v. McHugh, 89 Ala. 531; Center v. P. & M. Bank, 22 Ala. 743; Welsh v. Phillips, 54 Ala. 309; Prout v. Hoge, 57 Ala. 28; Dacus v. Streety, 59 Ala. 183. The general rule is, that there must be an actual delivery of the thing, to constitute a valid parol gift. The rule has some exceptions, dependent on the nature of the thing intended to be given. If it be so bulky as to be incapable of manual delivery, then pointing it out, and directing the donee to take possession of it, will amount to a valid gift. So, if the subject of the gift be under lock and key, delivery of the key, accompanied with words expressing a present intention to give, will satisfy the requirements of the law. But. there must be a parting with the dominion, the control over the thing, or the attempted gift fails. Another exception found in the rulings is where one, intending to make a present, declares that he holds in trust for another. This, it is held, constitutes the donor a trustee of the thing, aud dispenses with the actual delivery. But the law will not imply such trust. It must be expressed. — 8 Amer. & Eng. Encyc. of Law, 1313 to 1320, and notes. We regret the conclusion we have been forced to reach in this ('ase, for we are satisfied it was the wish and intention of Mrs. Murray to make a gift of the claim and mortgage. Unfortunately she failed to consummate it by delivery. Failing to find that the gift to Mrs. O’Connor was executed, we need not consider any other question. The decree of the chancellor is reversed, and a decree here rendered, dismissing complainant’s bill, which necessarily dissolves the injunction. Reversed and rendered.