#### A. J. PERKINS v. GEORGE W. THOMPSON.

(Decided November 9, 1898.)

Deeds, Delivery of — Evidence.

1. A deed signed, properly acknowledged and registered, and found in possession of tlie grantee, is presumed to have been delivered; but the presumption is not conclusive and may be disproved by proper evidence.

2. Hearsay evidence is inadmissible for the purpose.

Civil action to recover land, tried before Robinson, </., at May Term, 1898, of the Superior Court of Orange County.

*176The plaintiff claimed to be the owner of the land, and alleges that the deed from himself to the defendant had never been delivered, but was surreptitiously obtained by the defendant from plaintiff’s wife.

The deposition of plaintiff, a non-resident, was read in evidence, in which he stated “he had learned from friends, that Thompson had taken up with his wife, and they were living together as man and wife, and she had had two illegitimate children by said Thompson.”

The evidence was objected to by defendant, but allowed by the Court, and defendant excepted.

There was a verdict and judgment for plaintiff and appeal by defendant.

Messrs. Graham & Graham, for defendant (appellant)."

Mr. James B. Mason, for plaintiff.

Montgomery, J.:

The deed, if it was delivered, conveyed the land in it described to the defendant. He got possession of the deed in some way and had it registered, although more than a dozen years had elapsed after the plaintiff had acknowledged its execution before a Justice of the Peace. The usual issues in actions for possession of real estate were submitted, the responses to which by the jury depended upon the fact whether or not there had been, in law, a delivery of the deed.

The pláintiff offered on the trial his own deposition, in which he deposed, among other things, that in 1879 he got into trouble with the United States government on account of his having participated in illicit distilling, and that he expected to flee the State to prevent conviction and punishment; that he made the deed to Thompson, the defendant, to save the land therein con*177veyed, to his wife and children; that he was tried for the offence with which he was charged, convicted, imprisoned and served his term; that afterwards he left the State — in 1881 — leaving the deed in his trunk with his other papers, and that he never said anything to Thompson about the deed after it was signed.

Basil Andrews, a witness for the plaintiff, testified that when the plaintiff left the State in 1881-, the plaintiff’s wife was in possession of the land and that she and her children remained in possession until the defendant married her in 1891, and for several years she rented out the land to other persons.

D. M. Durham, a Justice of the Peace, testified that the plaintiff acknowled the execution of the deed before him, and that his wife’s signature and private examination were had afterwards at the plaintiff’s request, and that he does not know what became of the deed after the wife’s acknowledgement and privy examination.

The defendant then moved, under the Act of 1897, “for non-suit of plaintiff, as the evidence showed a nefarious transaction in which the plaintiff had endeavored to defraud the government, and that the acknowl-edgement of the execution of the deed in August, 1879, before a Justice of the Peace included signing, sealing and delivery; and.the fact of delivery had been judicially determined and could not be controverted or impeached in this action to recover the land; also, the statement of Durham, the Justice of the Peace, that the deed was left with him by A. J. Perkins to take the ac-knowlédgement of Mrs. Perkins, showed a delivery by Perkins.”

The motion was overruled by the Court, and in that *178ruling there was no error. The presumption was that the deed had been delivered. Its delivery was presumed not only because it had been registered, but also because it was found in the possession of the grantee signed by the grantor and duly acknowledged before a Justice of the Peace. In Whitmond v. Shingleton, 108 N. C., 193, it is said that “the deed in question was in possession of the -grantee, and such possession, with proof of the signing by the grantor, is evidence from which the jury may presume a delivery,” and in Tiedman on Real Property, page 813, the law is declared to he, “if the deed is found in the possession of the grantee a delivery and acceptance are presumed.”

The contention of the defendant, however, is that upon the plaintiff’s evidence the presumption is conclusive, it appearing that the plaintiff left the deed with the Justice of the Peace to take the acknowledgement and privy examination of the plaintiff’s wife, and that that act was such a parting with the possession of the deed as constituted a delivery to the defendant. The contention cannot be sustained. The Justice who took the probate had no instruction from the plaintiff to deliver the deed to the defendant, or to do anything further with it after it was acknowledged by the grantors. There are no set rules or forms laid down as to what constitutes a delivery of a deed, but in all cases the grantor must do or say something going to show that he intends the deed to become operative before the title can pass. The deed not having been left after its execution with the Justice of the Peace as an escrow, nor to be delivered unconditionally to the Register of'Deeds or to the grantee or to some person for him, the powers and duties of that officer ceased with the discharge of his official duties. With the actual delivery of the *179deed, he, as an officer authorized to take the acknowledgment of deeds, had no concern.

In Rollins v. Rascoe, 111 N. C., 79, to which we were referred by the defendant’s counsel, it appears that the grantor had parted with the deed by delivering it to the deputy Clerk of the Superior Court with instructions to have the same proved by the subscribing witness before the Clerk of the Court, who was absent from his office, and to have the same registered. In Hall v. Harris, 40 N. C, 303, the Court in discussing the matter of the delivery of the deed, said: “The law does not depend upon the accidental use of - mere words ‘trusted to the slippery memory of witnesses.’ It depends upon the act that a paper signed and sealed is put out of the possession of the maker.”

Iii the case before the Court, the Justice who took the acknowledgement had no further connection with the deed, and, according to the plaintiff’s evidence, the plaintiff kept the deed in his trunk after his wife had acknowledged it, for years, and never mentioned the matter to the grantee afterwards.

In Ellington v. Curry, 49 N. C., 21, which the defendant’s counsel also cited, the deeds had been signed and sealed by the grantor, and witnessed, and had been ordered to registration by the grantor himself.

But the defendant further contends, in his motion to non-suit the plaintiff, that the fact of delivery had been judicially determined and could not be controverted or impeached in this action to recover the land, and cited as authority for the position the case of Redmon v. Graham, 80 N. C., 231. We have read that case with care. It does not disclose the nature of the pleadings and the precise purpose of the action. It does appear, however, that the impeachment of the delivery was at*180tempted to be made collaterally. The action of the probate judge was declared by the Court to be a judicial act and the fact of delivery determined therein. In the suit before us, however, the plaintiff in the amended complaint alleges that the defendant came into possession of the deed unlawfully and fraudulently, and that it was never delivered by the plaintiff to the defendant; and there is a prayer for general relief. The motion to dismiss having been properly overruled, the defendant then put in evidence tending to show the delivery of the deed to him by the plaintiff. The theory of the plaintiff was that the defendant got possession of the deed surreptitiously after the plaintiff left the State, through unlawful intimacy with the plaintiff’s wife and undue influence which he thereby exerted over her. On the question of delivery, his Honor received, under objection of the defendant, a part of the deposition of the plaintiff, which in substance was that the plaintiff in 1894'had written to his attorney (Mr. Mason) that he was surprised at the claim of Thompson on the land, and that he was mad, and had learned from friends that Thompson, the defendant, had taken up with his wife, that they were living together as man and wife and that she had had two illegitimate children by him (the information was received years before). Other parts of the deposition of like tenor were introduced and received over the objection of the defendant. This evidence tended to prove that the defendant had been unlawfully co-habit-ing with the plaintiff’s wife, and that through that influence he had procured her to deliver to him the deed which the plaintiff had left in his trunk on his departure from the State. It was hearsay testimony on a most vital point and ought not to have been received;' and *181for the error in the admission of the testimony there must be a new trial.

New trial.