Walker v. Warner ( 1908 )

Mr. Chief Justice Shepard

delivered the opinion of the Court:

We are of the opinion that, upon the evidence recited, the court erred in denying the motion to direct the jury to return a verdict for the plaintiff. The evidence was direct and clear that Rebecca Thompson, with knowledge of the contents of the deed, not only affixed her signature thereto, but also acknowledged its execution to the notary public, who certified to the fact in the proper manner. It was read in evidence without objection. As stated by the court in the commencement of his charge, the single question was as to the delivery of this deed.

No particular form or ceremony is essential to the effective delivery of a deed. Words or acts showing an intention that the deed shall be complete and operative constitute a good delivery. Simmons v. Simmons, 78 Ala. 365, 367; Creighton v. Roe, 218 Ill. 619, 621, 109 Am. St. Rep. 310, 75 N. E. 1073. When last seen by the notary who attested it as a witness and certified to its acknowledgment, it was lying on the table where the execution occurred. Alice D. Walker testified that she saw Rebecca Thompson sign and acknowledge the deed and place it in the hands of the plaintiff. The deed undoubtedly passed into the possession of the grantee, and remained in her possession and that of her agents until produced at the trial. There was nothing tending to show that any fraud or imposition had been practised upon the grantor, or that possession of the deed had been obtained by any improper means. Possession, alone, of a deed by the grantee is prima facie evidence

of its delivery Sicard v. Davis, 6 Pet. 124, 137, 8 L. ed. 342, 347; Games v. Stiles, 14 Pet. 322, 326, 10 L. ed. 476, 478; Stanley v. Schwalby, 162 U. S. 255, 274, 40 L. ed. 960, 966, 16 Sup. Ct. Rep. 754. By the great weight of authority, this presumption of delivery based on possession is so strong that it can only be overcome by clear and convincing proof that there had been no delivery. McGee v. Allison, 94 Iowa, 527, 531; 63 N. W. 322; Inman v. Swearingen, 198 Ill. 437, 64 N. E. 1112; McCann v. Atherton, 106 Ill. 31; Creighton v. Roe, and Simmons v. Simmons, supra; Rohr v. Alexander, 57 Kan. 381, 384, 46 Pac. 699; Cover v. Manaway, 115 Pa. 338, 345, 2 Am. St. Rep. 552, 8 Atl. 393. This last case holds that the presumption is strengthened where the execution of the deed had been acknowledged. In McGee v. Allison, supra, it was said: “Such a rule is necessary to the security of titles'. Any other would render all holdings uncertain, and would be disastrous in the extreme.”

As we have seen, there was nothing in the evidence relating to the execution and delivery of the deed tending to raise the slightest inference that the grantee obtained possession through improper or illegal means. Nor was there any attempt to contradict the positive statement of the witness that it had been actually. delivered by the grantor immediately after execution and acknowledgment. There was nothing inherently improbable in the circumstances surrounding and accounting for the transaction. On the contrary, they tended to strengthen the probability of the truth of the witness’s statement. The grantor had been a favored slave of the grantee’s father-in-law, through whose bounty she acquired her freedom, and from whom she received the money of which the property in question was a result. After her freedom she had remained with the family, upon terms of friendly intimacy not uncommon in such cases. She had no children, and, apparently, no near kin, if any at all. Nothing was more natural, therefore, than that, towards the close of her life, she should have selected the then head of this family as the object of her bounty. But, aside from this direct and positive evidence of the delivery of the deed that had been voluntarily executed and acknowledged, there was the strong presumption of delivery raised by the grantee’s possession; of the deed, which there was no attempt to rebut. With a prima facie case so made there remained nothing to be submitted to the jury.

In a case where the question was one of delivery of an instrument, it was said by Mr. Justice Story: “What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose. . The jury are bound to consider it in that light, unless they are invested with authority to disregard the rules of evidence, by which the liberty and estate of every citizen are guarded and supported. No judge would hesitate to set aside their verdict and grant a new trial, if, under such circumstances, without any rebutting evidence, they disregarded it. It would be error on their part, which would require the remedial interposition of the court. In a legal sense, then, such prima facie evidence, in the absence of all controlling evidence, or discrediting circumstances, becomes conclusive of the fact; that is, it should operate upon the minds of the jury as decisive to found their verdict as to the. fa.ct. Such we understand to be the clear principles of law on this subject.” Kelly v. Jackson, 6 Pet. 622, 632, 8 L. ed. 523, 526. See also, Crane v. Morris, 6 Pet. 598, 620, 8 L. ed. 514, 522; United States v. Wiggins, 14 Pet. 334, 347, 10 L. ed. 481, 488; Lilienthal v. United States, 97 U. S. 237, 268, 24 L. ed. 901, 905; Brown v. Petersen, 25 App. D. C. 359, 363. In the case last cited it was said: “The appellant’s contention would require that every case of uncontradicted and unimpeached evidence should be submitted to a jury, where there is no countervailing testimony. But this is not the law. The law is that positive testimony uncontradieted, and not inherently improbable, is prima facie evidence of the fact which it seeks to establish it, and the jury is not at liberty to disregard it.”

With the prima facie case made by the possession of the deed, had that question alone been submitted to the jury, it would have been the duty of the court to set aside a verdict disregarding the same. Where the testimony is of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict returned in opposition thereto, it may be withdrawn from the consideration of the jury. Phœ Mut. L. Ins. Co. v. Doster, 106 U. S. 30, 32; 27 L. ed. 65, 66; Connecticut Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612, 615, 28 L. ed. 536, 537.

The court, in fact, instructed the jury that possession wasprima facie evidence of delivery, and that, in the absence of anything else, that presumption would control. And, doubtless,, but for his view of the effect of evidence relating to the conduct of the parties after the possession of the deed had passed to plaintiff, he would have directed the jury to return a verdict for her.

This brings us to the consideration of the error assigned on the charge thereafter given which discloses that view. This, instructed the jury that the question turned upon the intent with which the grantor delivered the deed to the grantee, provided they should find that it had in fact been delivered. They were further charged that in ascertaining this intent they should take into consideration the mutual conduct of the two parties, afterwards. “By mutual consent,” he said, “I mean the conduct that was adopted by both of them, and which each knew the other was adopting, and assented to. Therefore, you are entitled to take into consideration the fact that Mrs. Walker never recorded this deed during the lifetime of Mrs. Thompson;. you are entitled to take into consideration the fact that Mrs. Walker permitted Mrs. Thompson to exercise dominion and ownership and to retain possession of the real estate, collect the' rents, make repairs, and pay taxes, and the like, which tend to-show that Mrs. Walker understood there was no intent to pass-title at the time the deed was delivered. You can take such facts into consideration; and it is for you to decide whether in this case there are sufficient facts which tend to show that there was no intent to pass the title, and make Mrs. Walker the owner, and sufficient to overcome the presumption of fact which the law draws out of the mere fact of delivery. If you find in this case the facts are such as to prove that there was no intent on the part of Mrs. Thompson to pass the title- and to make Mrs. Walker the owner at the time of the delivery of this deed, then the title did not pass by the delivery of the deed, and Mrs. Walker never became the owner, although she did have the physical possession of the deed. The burden is on the plaintiff to prove by a preponderance of .the-evidence that she is the owner at this time, which involves the-burden on her of proving by a preponderance of the evidence-that at the time of the delivery of the deed the title passed. In order that you may not be misled by that statement as to-the presumption of proof, she would raise a prima facie case in her favor by simply - proving that the deed had been delivered to her. But that rule does not settle the matter, because, as I said, you have to take into consideration the other-facts in determining whether or not, weighed by all the facts of the case, that presumption ought to attach to this particular case.”

This last instruction practically destroyed the benefit of the-presumption arising from the possession of the deed, and was-erroneous for the reasons stated in the exceptions reserved to-it by the plaintiff.

The intent of the parties is to be determined by what occurred at the time of the transaction. When a deed sufficient to-vest a title is executed and delivered, the law raises the presumption of an intent to pass the title in accordance with its terms. A deed cannot be delivered to the grantee upon a condition not expressed in the instrument. Newman v. Baker, 10 App. D. C. 197; Bieber v. Gans, 24 App. D. C. 517. Moreover, there was not a circumstance in the transaction tending to show that there was any condition attached to the 'delivery in this case, or that the grantor did not contemplate the necessary legal consequence of her acts. The fact that a deed once delivered is withheld from record for a long period or until the death of the grantor, either at, or without, the-request of the latter, has no effect to impair its effect as a conveyance of title, or to operate any extinguishment. Fitzgerald v. Wynne, 1 App. D. C. 107, 120; Bunten v. American Security & T. Co. 24 App. D. C. 226, 232.

Nor can the additional fact that the grantor was permitted to remain in possession and control of the property conveyed, defeat the legal consequence of the actual delivery of the deed. Fischer v. Union Trust Co. 138 Mich. 612, 68 L.R.A. 987, 110 Am. St. Rep. 329, 101 N. W. 852; McGee v. Allison, 94 Iowa, 527, 531, 63 N. W. 322; Burry v. Young, 98 Cal. 446, 451, 35 Am. St. Rep. 186, 33 Pac. 338; Driscoll v. Driscoll, 143 Cal. 528, 77 Pac. 471; Saffold v. Horne, 72 Miss. 470, 487, 18 So. 433; Greighton v. Roe, 218 Ill. 619, 109 Am. St. Rep. 310, 75 N. E. 1073. Such circumstances as the retention of possession and control by the grantor, coupled with failure to record the deed, if unexplained, would have weight in determining whether there had been an actual delivery, when there is evidence of circumstances tending to raise a doubt whether there was in fact a delivery of the deed, or whether it had come properly into the possession of the grantee at che time or subsequently. As we have seen, it is not permissible to show that the delivery was upon a condition not expressed in its terms, or in some contemporaneous instrument intended to operate therewith; and, for a stronger reason, the subsequent conduct of the parties cannot be made the ground of inference as to the intent of the parties at the time of actual delivery, in order to rebut the presumption arising from the execution and acknowledgment of the grantor and possession by the grantee.

There was no evidence in this case tending to show any circumstances from which it could be inferred that there was any other intention of the parties at the time than that manifested by the acts of execution, acknowledgment, and delivery of the deed. Moreover, it would seem that the conduct of the grantee in-permitting the grantor to receive the entire benefit of the property during her life may be reasonably accounted for without raising a necessary suspicion in regard to the'manner in which she came into possession of the deed. Grantor’s home with the grantee had been broken up, and it was natural that the latter should have permitted her to enjoy the revenues of the property for maintenance during her remaining years. In view of the relations of the parties, and the fact that the conveyance was a gift founded on affection and a sense of gratitude for past bounty and kindness, it would have been cruel and unnatural to withhold from the grantor the income of the property while she continued to live and to have need therefor.

In the view that we have taken of this case, the answer of the witness Alice D. Walker to the thirteenth interrogatory is unimportant and has not been considered.

If there had been any evidence tending to raise a question as to the execution and delivery of the deed which would warrant the consideration of the evidence relating to the retention of possession by the grantor and the failure to record the deed until after her death, then the concluding statement as to the making of a will by the grantor and its destruction and the substitution of the deed would constitute a material circumstance tending to support the fact of delivery of that deed, and thereby become admissible. It is. proper to remark that general interrogatories like the one in question are improper as they do not inform the opposing party of the answer that might be expected so as to enable a cross-examination to be had thereon. Such defects, however, go to the form of the deposition, and should be called attention to by motion to exclude or suppress the answer, in advance of the trial, so that the party relying upon the answer could have an opportunity to remedy the defect, if desired, by retaking the deposition on that point, before entering upon the trial

For the reasons given, the judgment will be reversed with costs and the cause remanded for a new trial. Reversed.