{ "id": 1478523, "name": "Van Huss v. Wooten", "name_abbreviation": "Van Huss v. Wooten", "decision_date": "1945-03-19", "docket_number": "4-7565", "first_page": "332", "last_page": "338", "citations": [ { "type": "official", "cite": "208 Ark. 332" }, { "type": "parallel", "cite": "186 S.W.2d 174" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "24 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726812 ], "opinion_index": 0, "case_paths": [ "/ark/24/0244-01" ] }, { "cite": "202 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1450006 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/0123-01" ] }, { "cite": "200 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453354 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/200/0220-01" ] }, { "cite": "57 S. W. 2d 410", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 947", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726548 ], "opinion_index": 0, "case_paths": [ "/ark/186/0947-01" ] }, { "cite": "136 S. W. 172", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "98 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1315957 ], "opinion_index": 0, "case_paths": [ "/ark/98/0466-01" ] }, { "cite": "60 S. W. 2d 925", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "187 Ark. 430", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1431976 ], "opinion_index": 0, "case_paths": [ "/ark/187/0430-01" ] } ], "analysis": { "cardinality": 553, "char_count": 10912, "ocr_confidence": 0.503, "pagerank": { "raw": 2.106851857817775e-07, "percentile": 0.7625956185090328 }, "sha256": "ce06e4fb8a5704bd5f4722bd6f698ed1d10ec24928e2e8d5adb67535bccc770e", "simhash": "1:13514211022f98d4", "word_count": 1994 }, "last_updated": "2023-07-14T15:02:19.909104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Van Huss v. Wooten." ], "opinions": [ { "text": "Robins, J.\nThe sole question in this case is whether a deed, executed by John M. Van Huss, deceased, on March 9, 1942, purporting to convey to appellant, J. D. Van Huss, a twenty-four acre farm in Benton county, Arkansas, was ever delivered in the lifetime of the grantor so as to vest title in appellant.\nAppellee filed complaint in the lower court against appellant, alleging that she was the owner of this land by virtue of a will executed by John M. Van Huss, her brother, under which will all his property was devised to her, and that the deed to appellant, recorded after the death of John M. Van Huss, was void because it was never delivered to appellant; and she prayed for the cancellation of the deed as a cloud upon her title. Appellant in his answer denied the allegations of the complaint and alleged that the deed was delivered to him by the grantor.\nThe court found that the \u2018 \u2018 said deed is void . . . because said deed was never delivered to the defendant in the lifetime of the deceased, but came into the possession of the defendant from an unauthorized source after the death of the deceased, and that no title passed to the defendant by said deed; that defendant paid no consideration for said deed.\u201d From the lower court\u2019s decree cancelling the deed and vesting title to the property in appellee this appeal is prosecuted.\nThere is little dispute in the testimony. Under the will of John M. Van Huss, a bachelor and a resident of Pampa, Texas, he devised and bequeathed all of his property to appellee, his sister, with whom he had made his home for about seven years before his death. This will was executed on December 20, 1939, and after his death was duly probated in the county of his residence in Texas and also probated, as a foreign will, in Benton county, Arkansas. The deed involved herein was executed on March 9, 1942, and it was retained in the actual possession of the grantor, John M. Van Huss, until his death. John M. Van Huss remained in possession of the land, and, on June 16, 1942, mortgaged it to secure a note for $150 to Elizabeth F. Smith. Pie paid this debt and obtained release of the mortgage on November 28, 1942.\nAfter the death of John M. Van Huss, which occurred on February 14, 1943, appellant, appellee and other relatives opened a suitcase belonging to John M. Van Huss, which he had kept near his bed in the home of appellee, and found therein, among other effects and papers, the deed here involved. Appellant took charge of the deed and caused it to be recorded.\nIt was not contended by appellant that the deed had ever been manually delivered to him by his uncle, the grantor, but he testified that his uncle had told him about executing the deed and that he paid his uncle one dollar to make the deed legal. Appellant testified: \u201cHe told me when he drawed his last breath to go to his suitcase and get it ... Q. Did he discuss with you why he didn\u2019t give you the deed? A. He wanted to take care of it himself \u2019til he passed away. Q. He said he wanted to have the use of the property, have control of it? A. Yes.\u201d ' Appellant is contradicted as to this by Judge Cary, the attorney in Texas who attended to the probating of the will there: Judge Cary testified- that appellant told him that he (appellant) knew nothing about the deed until after his uncle\u2019s death. Although appellant admitted talking to Judge Cary about the matter and that Judge Cary told him the deed \u201cwasn\u2019t any good,\u201d and admitted that as a result of this conversation he unsuccessfully tried to get a quitclaim deed from appellee, appellant did not deny that he had told Judge Cary that he (appellant) knew nothing of the existence of the deed until after the death of John M. Van Huss. H. B. Van Huss, father of appellant, testified that his brother, John M. Van Huss, said: \u201cMy deeds and papers are fixed and when I die I want these papers delivered like I\u2019ve got them fixed . . .\u201d Nowhere in the testimony is it shown that anyone, other than John M. Van Huss, during Ms lifetime, ever liad possession of the deed or that he ever surrendered control over it as long as he lived.\nOur decision in the case of Johnson v. Young Business Men\u2019s Building & Loan Association, 187 Ark. 430, 60 S. W. 2d 925, is cited by appellant as supporting his contention that there was a delivery of the deed to appellant. But in the Johnson case it was shown that the deed there involved was placed in a safe, the combination of which was known to the grantee, and to which safe the grantee at all times had access. It further appeared in that case that the grantee was the seventeen-year-old son of the grantors, and, for that reason, it was not entirely inconsistent with a delivery of the deed for the parents, the grantors, after delivery of the deed, to have kept it in their custody for their minor son. In the instant case there was no testimony to indicate that appellant, who was an adult living in his own home, ever had the .deed in his possession or ever had access to his uncle\u2019s suitcase, in which the deed was kept.\nThe general rule as to the sufficiency of delivery of a deed is thus stated in 16 Am. Jur., p. 510: \u201cWhile delivery may be by words or acts, or by both combined, and manual transmission of the deed from the grantor to the grantee is not required, it is an indispensable feature of every delivery of a deed, whether absolute or Conditional, that there be a parting with the possession of it and with all power of dominion and control over it, by the grantor, for the benefit of the grantee at the time of the delivery. There is no delivery in law where the grantor keeps the deed in his own possession with the intention of retaining it, particularly if he keeps possession of the property as well; dominion over the instrument must pass from the grantor with the intent that it shall pass to the grantee . . . Where the proof fails to show that the grantor did any act by which he parted with the possession of the deed for the benefit of the grantee, the question, of intent becomes immaterial; . . . but if he [grantor] does not evidence an intention to part presently and unconditionally with the deed, there is no delivery.\u201d In the same volume, at page 516, it is said: \u201cIt is indispensable to the delivery of a deed that it pass beyond the control or dominion of the grantor; and where a grantor retains a deed which he executes in his possession and control until his death without doing anything to indicate an intention to deliver it, it is void for want of a delivery. \u2019 \u2019\nIn Corpus Juris Secundum, vol. 26, p. 246, \u00a7 45, it is said: \u201cA deed executed by the grantor with the intention of having it take effect after his death, but which he retains in his possession or control without transfer of a present interest, will be ineffectual to pass title for want of delivery.\u201d\nMr. Thompson, in his work on Real Property, says: \u2018 \u2018 The burden of proving the delivery of a deed rests upon the party who claims that it was delivered. . . . Proof that a deed was executed, and that it remained in the possession of the grantor, is no evidence that it was ever delivered, but on the contrary it is some evidence that it had not been delivered.\u201d Section 4121. . . . \u201cWhere a deed is found in the possession of a grantor, a presumption arises that it was never delivered, and the burden of proving delivery is upon the party claiming under the deed.\u201d Section 4136.\nIn Devlin on Deeds, \u00a7 260a, the rule is thus stated: \u201cNo title passes for want of delivery where the grantor held possession of the deed and died possessed of the premises, without the doing or saying of anything indicating that title should pass. It is a presumption that the parties understand that delivery is necessary.\u201d\nJudge Wood, speaking for this court, in the case of Maxwell v. Maxwell, 98 Ark. 466, 136 S. W. 172, said: \u201cThere is no delivery unless what is said and done by the grantor and grantee manifests their intention that the deed shall at once become operative to pass the title to the land conveyed, and that the grantor shall lose dominion over the.deed.\u201d\nIn the case of Taylor v. Calaway, 186 Ark. 947, 57 S. W. 2d 410, it was held (headnote 1): \u201cIn order to constitute delivery of a deed, it must be the intention of the grantor to pass the title immediately, and that the grantor shall lose dominion over the deed.\u201d\nThe proof in the case of Thomas v. Langley, 200 Ark. 220, 138 S. W. 2d 380, showed that Langley in 1919 executed a deed conveying his land to his mother. It was not shown that the deed was ever actually delivered to the grantee, hut after Langley\u2019s death the deed was found among his papers. Langley\u2019s mother lived with him on the land until her death in 1928, and shortly afterwards Langley married. There was testimony tending to show that the land was bought with money belonging to Langley\u2019s mother, that Langley had stated that he had used his mother\u2019s money in buying the land and that he had deeded the property to her. We held in that case that the evidence was insufficient to establish delivery of the deed.\nIn the case of Ransom v. Ransom, 202 Ark. 123, 149 S. W. 2d 937, we said: \u201cIt was said in the early case of Miller v. Physick, 24 Ark. 244, that \u2018A deed to be operative must be delivered. The act of signing and sealing gives it no effect without delivery. The delivery is a substantive, specific, and independent act, which may be inferred from words alone, or from acts alone, or from both together, and though there is no particular form in which to make it, still enough must be done to show that the instrument was thereby considered to have passed beyond the legal control of the maker, or his power to revoke it.\u2019 That holding has never been departed from or modified in any manner. On the contrary, it has been reaffirmed in many subsequent cases.\u201d\nApplying to the testimony in the case at bar the rules, as to essentials of a valid delivery of a deed, set forth in the above authorities, we conclude that the finding of the lower court is not against the preponderance of the testimony. There was no proof that the deed was ever out of the actual possession of John M. Van Huss during his lifetime or that by -any word or act he ever surrendered dominion or control over this deed. On the other hand, the testimony tends to establish his firm intention to retain possession of and control over the deed until his death. With the evidence showing such an intention on the part of the grantor, coupled with his actual retention of the deed throughout his life, as well as a continued possession of the land by the grantor, it cannot be said that there was such a delivery of this deed to appellant as to make it effective as a conveyance.\nThe decree of the chancery court is correct and it is affirmed.", "type": "majority", "author": "Robins, J." } ], "attorneys": [ "Vol T. Lindsey, for appellant.", "A. L. Smith, for appellee." ], "corrections": "", "head_matter": "Van Huss v. Wooten.\n4-7565\n186 S. W. 2d 174\nOpinion delivered March 19, 1945.\nVol T. Lindsey, for appellant.\nA. L. Smith, for appellee." }, "file_name": "0332-01", "first_page_order": 350, "last_page_order": 356 }