Culver v. Carroll

SOMERVILLE, J. The action is one of ejectment brought to recover a tract of land described in a deed executed by L. A. Culver, deceased, to his wife, Julia F. Culver. The conveyance is dated December 22, 1891, is duly signed and acknowledged, and based on a consideration of natural love and affection. The. lower ■court permitted the deed to go to the jury as part of the evidence in the case, to which exception was taken by appellant’s counsel, and error is assigned based on this ruling. The question raised for decision is whether the deed was ever delivered to the grantee, Mrs. Culver, ■during the lifetime of the grantor so as to have become ■effective. The paper was left by the grantor with the witness Kelsoe and one Sykes, now deceased, before the death of the former, who committed suicide very soon after. All the evidence on the question of delivery was given by Kelsoe, who stated that he could not say what Culver had said when he handed the deed over to them, and it was put in a safe. The witness observed: “I ■don’t know whether he said, ‘Take the deed and keep it for me;’ or, ‘Take it and keep it.’ I would not be positive it was either one, but it was something similar. I just inferred from it he wanted the paper preserved.” On cross-examination the witness further said: “I cannot be positive what he said. He may have said something else. I cannot be positive what he said.” [472] The rule is well settled in every jurisdiction that delivery is an indispensable requisite to the validity of a deed whether it be a conveyance upon valuable consideration, or a voluntary conveyance in consideration of love and affection. And it is necessary that the delivery should be made in the lifetime of the grantor, for “there can be no delivery by a dead hand.” A delivery after the grantor’s death is no delivery. — Jones v. Jones, 6 Conn. 111, 16 Am. Dec. 30, and note; Jackson v. Leek, 12 Wend. (N. Y.) 107. Yet there may be an inchoate delivery in the grantor’s lifetime which may become absolute on his death. — Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154. Cases of this kind sometimes present considerable difficulty. Deeds are sometimes delivered by a grantor to a third person as a depositary, with instructions to deliver to the grantee on the contingency of the grantor’s death. And it is commonly held that when this instruction is carried out such delivery will relate back to the prior delivery for the purpose of passing the grantor’s title. The intention of the party is the substantive thing. The first depositary is a trustee holding the deed for the benefit of the grantee. — Elsberry v. Boykin, 65 Ala. 340; Wheelwright v. Wheelwright, 2 Mass. 447 3 Am. Dec. 66; Taft v. Taft, 59 Mich. 185, 26 N. W. 426, 60 Am. Rep. 291; Sears v. Scranton Trust Co., 228 Pa. 126, 77 Atl. 423, 20 Ann. Cas. 1148-1150; 9 Am. & Eng. Ency. Law, 157. If the deed is subject to be recalled by the grantor before delivery to the grantee, there is no effectual delivery by the maker. — Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592; Davis v. Gross, 14 Lea (Tenn.) 637, 52 Am. Rep. 177. Under the above principles and those settled by our own authorities, we are of the opinion that the court [473] erred in not excluding the deed from the jury as requested by the appellants. — Fitzpatrick v. Brigman, 130 Ala. 453, 30 South. 500; Id., 133 Ala. 242, 31 South. 940; Tarwater v. Going, 140 Ala. 273, 37 South. 330. The present case cannot be distinguished in legal effect from Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500, and neither is in conflict with Fitzpatrick v. Brigman, 133 Ala. 242, 31 South. 940, where additional contemporaneous acts shown by the evidence pointed very strongly to the grantor’s intention to vest title in the grantee. It is unnecessary to pass on the other assignments of error if the deed be excluded from evidence. Reversed and remanded. All of the Justices concur.