Burton v. Peace

BeogdeN, J. Was there any evidence of the execution and delivery of the deed? The delivery of a deed is essential to its validity and is said to be “its tradition from the maker to the person to whom it is made or to some person for his use.” That is to say, the maker of the deed must part with the possession and control of the instrument with the intention of giving effect to it. Kirk v. Turner, 16 N. C., 14; Robbins v. Roscoe, 120 N. C., 79, 26 S. E., 807; Mordecai Law Lectures, Vol. II, page 28, et seq. This Court has consistently held that registration of a deed is prima facie evidence of delivery, but that such is not conclusive between the parties and that an injured party may attack the execution and delivery of the deed and show, if possible, that in fact there was no delivery. In the case at bar the deed was offered by the plaintiff for the purpose of attack, and hence the presumption arising from registration thereof, does not arise. See Fortune v. Hunt, 149 N. C., 358, 63 S. E., 82; Linker v. Linker, 167 N. C., 651, 83 S. E., 736. There was no evidence of a delivery of the deed during the lifetime of the grantor, and as there is no presumption arising from registration upon the facts disclosed by the record, the trial judge ruled correctly, and the judgment rendered is Affirmed.