Metcalfe v. Brandon

Chalmers, J., delivered the opinion of the court. Robert Semple conveyed to his son, W. W. Semple, a half interest in Desart plantation, in Wilkinson County, by deed absolute upon its face, but under a parol trust that the grantee should hold for the benefit of the grantor’s daughter, Mrs. Kate Metcalfe, who was in possession of the plantation at the time, -but to whom it was not thought advisable to convey directly, because of the fact that she was in debt. Subsequently the grantee, W. W. Semple, likewise became involved in debt, and under the advice of the father, and in order to preserve the property for Mrs. Metcalfe, put upon record a deed conveying it to Mrs. Brandon. The latter repudiating or denying the trust, Mrs. Metcalfe, by bill in chancery, sought to enforce it and compel a conveyance ofthe legal title to herself. The case came to this court and her bill was dismissed, because' to sustain it would be a violation of the Statute of Frauds. Metcalfe v. Brandon, 58 Miss. 841. After the dismissal by us of Mrs. Metcalfe’s bill this action of ejectment was brought against her by Mrs. Brandon for the recovery of possession of the plantation, the legal title to which was apparently in her by virtue of the deed put upon record by W. W. Semple. The first trial in the court below resulted in a verdict for defendant, Mrs. Metcalfe, but this was set aside by the court and a new trial had, which resulted in a verdict and judgment for plaintiff. Mrs. Metcalfe appeals, and the [688] first error assigned is the action of the court below in setting aside the verdict in her favor upon the first trial. We think this assignment is well taken. The principal question submitted to the jury was whether there had been a delivery to and acceptance by Mrs. Brandon of the deed put upon record by W. W. Semple. Of course, if there had not been, no title had passed to Mrs. Brandon. The putting of a deed on record is strong presumptive evidence of delivery, and where it confers a substantial right on the grantee, acceptance upon his part will ordinarily be inferred from very slight circumstances ; but these are mere presumptions of law, liable to be overthrown by direct negative proof. Here that proof is made in the most satisfactory manner. Mrs. Brandon knew nothing of the deed for several years after it was recorded, and when she learned of it, repudiated the trust with which it was accompanied, and which would certainly have been made a condition precedent to its delivery, if it had been handed to her in person. She never had the deed in possession at any time. When it was handed to the chancery clerk for record the maker instructed that official to return it to himself, or his attorney, as soon as recorded, and this was done. She saw the deed for the first time when it was produced in court upon the trial of this cause, by the attorney of Semple, in obedience to a subpoena duces tecum. She was a pure volunteer. She had paid nothing, nor was she under any obligation to pay anything for the conveyance. Manifestly there had been no delivery or acceptance of the deed, and she was wholly without title. Bullitt v. Taylor, 34 Miss. 741; 3 Washb. on Real Prop. (3d ed.) 261 (marg. 581), and cases cited; Jackson v. Barnes, 12 Johns. 419; Hulick v. Scoville, 4 Gilm. 159 ; Maynard v. Maynard, 10 Mass. 462. The verdict and judgment for plaintiff upon the second trial are set aside and vacated ; the verdict upon the first trial is reinstated, and judgment for defendant upon that verdict rendered here.