Fitzpatrick v. Brigman , 133 Ala. 242 ( 1901 )

DOWDELL, J.

Additional facts are ¡shown in evidence by the record on this appeal to those appearing on the former appeal in this case. — Fitzpatrick v. Brigman, 130 Ala. 450.

Both parties claim from a common source of title. It is a question of superiority of title. And the question of the delivery of the deed from Price, (the common source, to Buck, at the time this deed was left by Price with Selheimer, is the pivotal one in the case. If the act. of Price in leaving the deed in the possession of Selheimer amounted to and operated as a. delivery to Buck, then the plaintiff who derived title through Buck, has the superior title; otherwise the defendant has the superior- title. The intention of Price upon leaving the deed in the possession of Selheimer becomes a material inquiry on the question of deliverjc What is necessary to constitute a delivery was fully discussed on the former appeal, and we content ourselves with what was then said, as being sufficient for present purposes. What was Price’s intention is a question of fact to be determined by the jury from the attendant circumstances at the time. And to this end it was competent on the trial to adduce evidence of the transaction between Price and Buck, and what was said and done at the time by both of said parties, as well as by Selheimer, who acted as attorney for Price. There is, therefore, we think, no merit in the exceptions reserved to the questions asked, and the answers made by, the witness Selheimer, as shown in the record.

That thea-e were additional facts ¡shown in the evidence on the last trial, (to those on the former trial, was undisputed, and consequently there was no error in that portion of the oral charge excepted to, in which the court made such statement. That portion of the ora.1 charge excepted to, in which the court submitted to the jury the question of intention on the part of Price as to the delivery of the deed was free from error.

There was evidence from which the jury might have inferred an intention on the part of Price to deliver the deed to Buck, when he left if in the possession of Selheimer, and, therefore, the court properly refused the general charge requested by the defendant.

The second written charge requested by the defendant-had a tendency to mislead, in that the jury might have been led by it to the conclusion that a delivery of the deed to Bucle in person by Price was necessary to be shown in evidence to constitute a delivery.

We find no error in the record, and the judgment is affirmed.