Cable v. Cable , 146 Pa. 451 ( 1892 )

Opinion,

Mr. Justice Mitchell :

The instrument under which plaintiff claimed title was not merely testamentary, but a conveyance, in substance as it was in form. It is clearly distinguishable from the paper in Turner v. Scott, 51 Pa. 126, by the provision in the latter, “ this conveyance in no way to take effect till after death,” and the like limitation in the habendum. The deed in the present case was a formal conveyance in fee, “ excepting (in the habendum) that they, the said parties of the first part, reserve the right and use of said lot during their natural lives ; ” and the covenant of warranty is, “ with the exception as above stated, the right of living on and using said lot while they live.” The right of occupation thus excepted out of the grant is not inconsistent with the passage^to the grantee of an interest or title, and the deed may thus be supported upon the principles laid down by SHARSWOOD, J., in Eckman v. Eckman, 68 Pa. 460, 470, and in Waugh v. Waugh, 84 Pa. 350. No question of revocability, as in Frederick’s App., 52 Pa. 338, arises in the present state of the record.

The deed imposed no active duties of any kind on the trustee, and created merely a dry trust, which was executed certainly on the majority of the cestui que trust, if not before. Suit, therefore, was properly brought by him in his own name.

The question of the validity of the acknowledgment is premature. The deed was made in 1843, and was more than thirty years old when (offered in evidence. It was therefore an ancient deed, and probably entitled to the presumption of due execution; though what circumstances will obviate the necessity of concurrent possession of the land may be regarded as not entirely settled: McReynolds v. Longenberger, 57 Pa. 13, 31. But aside from this, acknowledgment as between the parties was unnecessary. The deed takes effect from delivery, and possession by the grantee is, in the absence of suspicious circumstances, prima-facie evidence of delivery: 2 Greenl. Ev., § 297.

The plaintiff, therefore, had made out a prima-facie title sufficient to go to the jury. Whether defendants are, or claim under subsequent bona-fide purchasers, and if so, whether plaintiff’s title is good against them, are questions that have not yet arisen in the case.

Judgment reversed, and venire de novo awarded.