McAllister v. Mitchner

CAMPBELL, C. J., delivei’ed the opinion of the court. Upon the facts, as stated by the appellant herself, the appellee is entitled to the decree rendered in his favor. She made a deed conveying the land to her daughter, and delivered it to her upon some verbal agreement as to its future disposition in certain contingencies, and it was surrendered to her by her daughter before she died. Grant it all. The title was in the daughter by the conveyance, and its surrender and cancellation had no effect on the title. A deed cannot be delivered to the grantee as an escrow, and any verbal agreement between grantor and grantee qualifying the effect of a delivery is of no effect. We repudiate as unsound the doctrine that a surrender and cancellation of a conveyance of title to land in any manner affects the rights of parties, except where upon the principles of law there exist the elements of estoppel in pais, of which the surrender of the evidence of title might be one. In itself it amounts to nothing. Burton v. Wells, 30 Miss. 688 ; Partee v. Mathews, 53 Ib. 140; Kelly v. Wagner, 61 Ib. 299; Connor v. Tippett, 57 Ib. 594 ; Devlin on Deeds, § 300 et seq.; Reed on Stat. Frauds, § 782, 784, and cases cited 2 Amer. & Eng. Enc. Law, 719. We would have been better satisfied with the decree if the Chancellor had taxed the complainant with the costs of all the testimony, or had divided it between the parties, as might properly have been done, in view of the fact that the case might have been set for [680] bearing on bill and answer with the same result as was reached at last, but do not feel authorized to change the decree even as to this, and therefore it is Affirmed.