Stinson v. Woodland Bank , 154 Ga. 254 ( 1922 )

Fish, C. J.

(After stating the foregoing facts.) The Civil Code (1910), § 4179, declares: “A deed to lands in this State must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or some one for him, and be made on a valuable or good consideration. The consideration of a deed may be always inquired into when the principles of justice require it.” The controlling question in the case is, whether the deed made by Stinson to his children of tender years was delivered. The deed to them was not a voluntary conveyance, but was one of bargain and sale, the alleged consideration being $600, which he testified he owed his children. It does not appear that he made any declaration to any one at any time as to his intention in executing the paper. It was never in the possession of the grantees or of any one else for them, but grantor kept the possession of it and the dominion over it. He also retained the possession of the land described in the deed; but he offered to testify that he held it as agent for the children. The judgment was obtained against him in March, 1915. The levy of the execution issued on the judgment was made in November, 1916. His deed to the children was recorded on February 23, 1917.

The acceptance of a deed of bargain and sale is essential to a complete delivery. Stallings v. Newton, 110 Ga. 875 (36 S. E. 227). There was no evidence of acceptance by the grantees or by any one for them. Nor was there any evidence as to the value of the undivided interest in the land conveyed by the grantor to his children. It may not have been worth anything like $600; and the children may have repudiated the conveyance after becoming of age. It was necessary to have two parties to the delivery of the deed, but here there was only one, the grantor; there must have been the concurrence of two minds in the transaction, but here there was only one mind, that of the grantor. The act of the grantor in executing the instrument was never mentioned to the grantees; his retention of its possession- and dominion over it was not in subordination to the grantees, but was independent of their will, whatever it might be> although he may have secretly considered that he was in possession as the agent of his minor children.

To make a deed effective at the time of its execution, there must be satisfactory proof that it was the intention of the grantor that the instrument should operate to immediately convey to the grantee title to' the premises therein described. Willingham v. Smith, 151 Ga. 102 (106 S. E. 117). The grantor’s undisclosed intention alone that the instrument should be effective as a deed will not constitute delivery. His purpose to deprive himself of power and control over the instrument for the benefit of the grantee must, be shown. Fortune v. Hunt, 149 N. C. 358 (63 S. E. 82); Zoerb v. Paetz, 137 Wis. 59 (117 N. W. 793); 1 Dev. Real Est. (3d ed.) 263; Justice v. Peters, 168 Ky. 583 (182 S. W. 611, 613).

Under tbe facts of tbe case and tbe law applicable thereto, the verdict finding the property subject to the execution was demanded, and the court did not err in directing such a verdict.

Judgment affirmed.

AIÍ the Justices concur.