Long v. McHenry , 1911 Pa. Super. LEXIS 80 ( 1911 )

Opinion by

Orlady, J.,

The delivery of a deed may be consummated by words alone, or by acts alone, or by both together; no formality is essential, and the question is to be determined by the intention of the parties as evidenced by their acts and declarations. The actual manual investiture of it need not be proved. The signing, attestation and acknowledgment by the grantor, and the recording of a deed are prima facie evidence of delivery, but there must be enough to indicate the intention of the parties to pass the title: Rigler v. Cloud, 14 Pa. 361; Dayton v. Newman, 19 Pa. 194; Stephens v. Rinehart, 72 Pa. 434; Cameron v. Gray, 202 Pa. 566; Savits v. Speck, 21 Pa. Superior Ct. 608.

The uncontradicted facts in this case show that while the title was taken in the name of the wife, Laura T. McHenry, and, that she did not furnish any of the purchase money, or participate in the transaction in any way, the husband contracted and paid for a tract of twenty-two acres of land and took title in the name of his wife. That he negotiated the sale of four small parcels of this larger tract (for a price representing nearly the whole of the original purchase money), and ponveyed the title thereto by deeds in which his wife joined. This left about sixteen acres of the property, with the title in the wife. The husband and wife then joined in a deed for these sixteen acres to one Little, who on April 1, 1907, with his wife, conveyed the undivided one-half thereof to Laura T. McHenry. The deed for this interest was properly executed by Little and wife, and was delivered by Little to Mark B. McHenry the husband, who retained it until October 17, 1908, when by the husband’s direction it was placed on record. The reason given for not placing it more promptly on record was to facilitate and simplify certain expected conveyances. On November 28, 1908, Little was adjudged a bankrupt, and his trustee instituted this action of ejectment against the wife to recover the one-half interest on the land, on the theory that there was no effective delivery of the deed to the wife.

The testimony shows that the method adopted in securing, holding and transferring the title to this land was well understood between the husband and wife. She was a mere figurehead, investing no money, and with her consent, her husband was acting for her. When the deed was delivered to McHenry by Little it was not necessary for McHenry to declare that he received it for her, nor for the wife to make any declaration in regard to a title that was absolute on its face. The title to the land passed to her at that time and the rights of McHenry’s creditors can rise no higher than his own, and as he cannot challenge her title, neither can they. Little could not have recalled the deed after the delivery to the husband and the transaction as to Little was complete, so that the delivery became effective for the grantee named in the deed.

The sufficiency of the physical delivery of this deed to the husband for the wife was the only question urged by the appellant, save a second proposition that was raised in regard to a matter of practice. The record shows that during the progress of the trial the court was disposed, and so stated, to give binding instructions for the defendant. The printed record does not show that a point, at plaintiff’s instance, was presented requesting binding instructions in favor of the plaintiff, but that this was done, is stated by appellant in his argument, and also that such a point was in fact affirmed by the court. A point of like nature was presented by the defendant and subsequently withdrawn, so that, by the affirmance of the plaintiff’s point and an exception thereto, on a motion for judgment non obstante veredicto, the legal question involved could be disposed of on argument. That such was the fact is averred by the appellee and is not denied either in printed or oral arguments. Further the court states it was so agreed by counsel, and we are not disposed to consider this phase of the case as a reversible error, it being considered a consentable irregularity that was waived at the time.

The judgment is affirmed.