Faulkner v. Feazel

Smith, J., (after stating the facts). It is contended by appellants that the conveyance by Faulkner to his wife transferred to her only an equitable title to the land in controversy, and that an action of ejectment could not be maintained upon that title. No exception appears to have been made to this deed in the court below, and no objection was made to its introduction as evidence. But, if appellees have any title to this land, they have the right to its possession and an equitable title coupled with the legal right to possession is sufficient to maintain an action of ejectment. Kirby’s Digest, § § 2737-2745; Stricklin v. Moore, 98 Ark. 30; Alexander v. Hardin, 54 Ark. 480; Percifull v. Platt, 36 Ark. 456; Graham v. St. Louis, I. M. & S. Ry. Co., 69 Ark. 564. As has been stated, the real question is whether or not the evidence is legally sufficient to support the finding that the deed had in fact been delivered. It must be confessed that the evidence to establish the delivery of the deed is not altogether satisfying; but we can not say that it is not legally sufficient for that purpose. In the case of Russell v. May, 77 Ark. 89, it was said: “A delivery of a deed is essential to its validity. It can not take effect without delivery, and what is delivery depends upon the intention of the grantor. Any disposal of a deed, accompanied by acts, words or circumstances, which clearly indicate that the grantor intends that it shall take effect as a conveyance, is a sufficient delivery. 2 Jones on the Law of Real Property and Conveyancing, § § 1217-1224, and cases cited.” No particular form of delivery is required. The deed may be manually given by the grantor to the grantee, yet, manual delivery is unnecessary. The real test of delivery is, did the grantor by his acts or words, or both, intend to divest himself of title; if so, the deed is delivered. O’Neal v. Brown, 67 Ga. 707; Tyler v. Hall, 106 Mo. 313. A number of instructions were given at the request of both parties, and others ¡asked by appellants were refused, which will not be set out in this opinion, as, in a general way, those which were given declared the law as here stated and required the jury to find that the grantor had parted with possesion of the deed for the purpose of divesting himself of his title to the land and of conveying that title to his wife. When this intent is effectuated a delivery of the deed is accomplished. Appellants also insist that the judgment should be reversed because the proof does not show that Mrs. Faulkner was aware -of the execution of the deed, until after the death of her husband, ¡and that therefore there was never any delivery of the deed to her, and no acceptance of it by her. A similar contention was made in the case of Russell v. May, supra, where ¡a deed had been executed by a husband to his wife and it was there said : ■“An acceptance of the deed by the grantee is also essential to its validity. If it is beneficial to the grantee, and imposes upon him no burdens, an acceptance may be inferred. If it be executed in pursuance of a previous understanding with the grantee, and is beneficial to him, an acceptance is presumed. In this case the deed was unquestionably beneficial to the grantee. But it is said that she did not know of the existence of the deeds until after the death of her husband, and that this fact disproves the acceptance. This does not necessarily follow. The confidential relation of husband and wife existed between the grantor and grantee, and it would have been natural for him to inform her of his intentions in advance, and for the wife to express her approval; and it by no means follows that she ¡did not accept because she did not know of the existence of the deeds until after the death of the grantor, which was on the fourth day after their execution. ’' We can not know what passed between Mr. Faulkner and his wife in regard to this deed, as they are both dead; but as this deed was highly beneficial to her, and imposed no burden whatever upon her, and recited the consideration .to be five dollars, cash in hand paid, which, if it had not been paid, was not required to be paid, and as this deed was found under lock and key, and in a receptacle containing her valuable papers, we think the jury was fully warranted in inferring an acceptance of the deed on the part of Mrs. Faulkner. The proof is undisputed that when the deed was acknowledged it was a valid conveyance of the land in controversy, and if it was delivered it conveyed the title to the land there described, and these subsequent interlineations (the proof does not show by whom made) did not operate to defeat the conveyance. Other exceptions were saved at the trial, and are urged as grounds for reversal, but we find no prejudicial error and the judgment is affirmed.