Newell v. Edwards

173 S.E.2d 504 (1970) 7 N.C. App. 650

Ouida B. NEWELL
v.
Mary MacKay EDWARDS.

No. 7010SC56.

Court of Appeals of North Carolina.

May 6, 1970.

Basil L. Sherrill, Adams, Lancaster, Seay, Rouse & Sherrill, Raleigh, for plaintiff appellant.

Hubert H. Senter, Franklinton, for defendant appellee.

PARKER, Judge.

A deed becomes operative to pass title only upon its delivery. Vinson v. Smith, 259 N.C. 95, 130 S.E.2d 45. "A deed must always be consummated by delivery, which is the final act of execution, and this delivery must be either actually or constructively made by the grantor to the grantee." Perry v. Hackney, 142 N.C. 368, 55 S.E. 289. After delivery, as between the parties, registration or even the continued existence of the physical instrument is not necessary to the continued existence of the grantee's title. 23 Am. Jur.2d, Deeds, § 310, p. 342. "The registration of deeds is primarily for the protection of purchasers for value and creditors; an unregistered deed is good as between the parties and the fact that it is not registered does not affect the equities between the parties." Bowden v. Bowden, 264 N.C. 296, 141 S.E.2d 621. Moreover, as between the parties, even after registration "[t]he ultimate inquiry is not what the records show, but what the terms of the original deed are." Bowden v. Bowden, supra.

Before delivery the grantor retains full power and control and may make such alterations in the instrument as he chooses, for it does not become his deed until delivered. Wetherington v. Williams, 134 N.C. 276, 46 S.E. 728. After delivery a deed may be changed with the consent of the parties and may then be redelivered, in such case the new delivery constituting a re-execution. Krechel v. Mercer, 262 N.C. 243, 136 S.E.2d 608. Absent such re-execution, however, transfer of title cannot be effected by the device of substituting the name of another person for that of the grantee who was designated in the deed. Perry v. Hackney, supra. In that case Walker, J., speaking for the Court, said:

"The first question raised is the sufficiency of the deed of Hannah Jane Richardson to pass title to the feme plaintiff. The deed was originally made to John W. Perry, his name was erased and that of his wife inserted in its place, and, as thus altered, it was registered. The deed therefore, which was made to John W. Perry, has never been registered, and the deed which was registered was not the one made by Hannah Jane Richardson. A deed presupposes a contract, and, indeed, is itself an executed contract, passing the equitable title after delivery and before registration; the latter taking the place of the livery of seisin to the grantee, and after registration the seisin or legal estate also passes. Davis v. Inscoe, 84 N.C. 396; Hare v. Jernigan, 76 N.C. 471; Respass v. Jones, 102 N.C. 5, 8 S.E. 770. The deed before registration may be redelivered or surrendered, as the cases we have already cited show, and a deed made by the grantor to a new grantee, at the request of the first grantee, if there is no fraud or other vice in the transaction. But that is not our case. A contract requires the assent of two minds to one and the same thing, and so, as to a deed, says Blackstone, for it is essential to its validity that there should be parties able and willing to contract and be contracted with for the purposes intended by the deed and a thing or subject-matter to be contracted for, all of which must be expressed by the parties in their deed. It therefore follows that there must be a grantor, a grantee and a thing granted, and in every lease, a lessor, a lessee, and a thing demised. 2 Blk. 295-297. Consent, which is the vital element of every contract, is wanting here. Hannah J. Richardson never agreed to be bound by a conveyance to the person whose name was inserted in the deed after its execution by her. She had an undoubted right to determine, by the exercise of her contractual right of selection, to whom she would convey the land."

"The requisites of valid delivery of a deed are (1) an intention on the part of the grantor to give the instrument legal effect according to its purport and tenor; (2) the evidencing of such intention by some word or act disclosing that the grantor has put the instrument beyond his legal control; and (3) acquiescence by the grantee in such intention." 3 N.C. Index 2d, Deeds, § 7, p. 248.

In the light of these principles the judgment of nonsuit in the present case must be held error. Plaintiff's evidence, viewed in the light most favorable to her, would justify a jury finding that there had been a completed delivery of the deed to the grantee originally named, that thereafter the first two pages were retyped to substitute the name of a different grantee, and that the grantors never consented to the change. Plaintiff's witness Ferrell, who represented the grantors at the closing, testified that he collected the full purchase price from John Oliver Newell and personally delivered to Mr. Newell the deed which named him as grantee. The deed was executed by the bank as Administrator of the estate of the deceased former owner. In so doing the bank acted under authority of an order of court entered in a special proceeding. The deed was also executed by eleven individual grantors, who presumably were the heirs at law of the former owner. Even if we ignore the questions presented whether the bank as Administrator had authority to deliver any deed other than as directed in the court order, or whether the bank as agent of the individual owners had authority to give their consent to a change in the grantee, the jury would have been justified in finding from plaintiff's evidence that no consent had in fact been given. Ferrell testified that the changes in the deed were made against his advice.

Plaintiff testified that when she saw the deed on the day following her husband's death, his name still appeared as grantee. This would indicate that the change in the grantee's name was never accomplished during her husband's lifetime. While there seems to be a discrepancy between plaintiff's testimony and the testimony of her witness, Ferrell, who testified that Mr. Newell made the changes "as soon as I delivered the deed to him or shortly thereafter," under either version the jury could find that there had never been any consent to the change and no valid re-execution of the deed by the grantors. In any event, discrepancies in the evidence were ultimately for the jury to resolve. For purposes of ruling on defendant's motion for nonsuit, the court must resolve all discrepancies in plaintiff's favor.

The judgment of nonsuit is

Reversed.

CAMPBELL and HEDRICK, JJ., concur.