Napier v. Elliott , 146 Ala. 213 ( 1906 )

DENSON, J.

The only question presented by this record for determination is whether or not declarations of a grantor ma.de at the time he signs and acknowledges a. deed are competent to be given in evidence on the question of delivery, vel non, of the deed. Delivery is a necessary incident to the due execution of a deed. Without delivery it can never take effect. The record in this case shows then was no actual delivery; that the deeds were deposited by the grantor with the probate judge to be recorded, soon after they were signed; and after they were recorded they were returned to the possssion of the grantor, nc remained in possession of the lands until his death, and after his death the deeds were found in his trunk amongst his other papers, and were never in possession of the grantees.

Registration is not conclusive evidence of delivery, but it may be rebutted by other evidence. — 1 Dev. on Deeds, § 292, and authorities cited in notes 4 and 5; Alexander v. Alexander, 71 Ala. 295; Ellsberry v. Boykin, 65 Ala. 336; Wells v. American Mortgage Co., 109 Ala. 430, on page 443, 20 South. 136; Gulf Red Cedar Lumber Co. v. O'Neal, 131 Ala. 117, 30 South. 466; Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500; Id., 133 Ala. 242, 31 South. 940; Lewis v. Watson, 98 Ala. 479, 13 South. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82; Blight v. Schenck, 10 Pa. 289. 51 Am. Dec. 478.

It is settled law that the fact of delivery rests in intention, and it is to be collected from all the acts and declaratioas of the parties, having relation to it. — Boykin v. Smith, supra; Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500. This being true, it would seem to follow that declarations of the grantor, made contemporaneously with the signing and acknowledgment of the deed and explanatory of the subsequent act of the grantor in having the deeds spread on the record, would be competent on the disputed question of delivery. — Gregory v. Walker, 38 Ala. 26; McClure v. Colelough, 17 Ala. 96; Law v. Law, 83 Ala. 432, 3 South. 752; 2 Wharton on Ev(2d Ed.) § 930.

On the facts disclosed by the record we are of the opinion that the court erred in not allowing the defendants to offer evidence of the declarations of the grantor. The case is distinguishable from that of Williams v. Higgins, 69 Ala. 517. There the deed was delivered to the grantee.

The judgment of the circuit court must be reversed, and the cause remanded.

Reversed and remanded.

Haralson, Dowdell, and Anderson, JJ., concur.