{ "id": 11270661, "name": "MRS. M. E. FORTUNE v. HAL. HUNT et al.", "name_abbreviation": "Fortune v. Hunt", "decision_date": "1908-12-09", "docket_number": "", "first_page": "358", "last_page": "362", "citations": [ { "type": "official", "cite": "149 N.C. 358" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "112 N. C., 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650496 ], "opinion_index": 0, "case_paths": [ "/nc/112/0096-01" ] }, { "cite": "34 N. C., 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8691687 ], "opinion_index": 0, "case_paths": [ "/nc/34/0291-01" ] }, { "cite": "117 N. C., 492", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "76 N. C., 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698105 ], "opinion_index": 0, "case_paths": [ "/nc/76/0450-01" ] }, { "cite": "37 W. Va., 725", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8640057 ], "opinion_index": 0, "case_paths": [ "/w-va/37/0725-01" ] }, { "cite": "6 Conn., 111", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 6754293 ], "opinion_index": 0, "case_paths": [ "/conn/6/0111-01" ] }, { "cite": "66 Me., 316", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 8844689 ], "opinion_index": 0, "case_paths": [ "/me/66/0316-01" ] }, { "cite": "27 N. C., 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275570 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/27/0505-01" ] }, { "cite": "120 N. C., 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656321 ], "opinion_index": 0, "case_paths": [ "/nc/120/0079-01" ] }, { "cite": "50 N. C., 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277132 ], "opinion_index": 0, "case_paths": [ "/nc/50/0302-01" ] } ], "analysis": { "cardinality": 453, "char_count": 9254, "ocr_confidence": 0.438, "pagerank": { "raw": 5.518840539102878e-07, "percentile": 0.9465113603148292 }, "sha256": "a711fc2f681f0ab330e83d438416eb2bf4def905b5458297ceec4a97d9e95f1d", "simhash": "1:bb02fb31c8dddedf", "word_count": 1654 }, "last_updated": "2023-07-14T21:20:43.519867+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. M. E. FORTUNE v. HAL. HUNT et al." ], "opinions": [ { "text": "BeowN, J.\nIt is stated in the brief of the learned counsel for defendants, that if his Honor was correct in holding that, upon the entire evidence in any view of it, there was no delivery of the deed of 21 September, 1810, from William Hunt, Sr., and wife to Elizabeth Hunt, then the judgment of the Superior Court should be affirmed. We think his Honor did err in directing a verdict upon that iss\\ie.\nThe deed in question was signed by William Hunt, Sr., on 21 September, 1870, who died three or four days thereafter. It was probated 1 January, 1891, and registered in August, 1906. The witnesses to the deed are J. T. Mode and his father, W. G. Mode, who is dead.\nThe facts as testified to by the witness to the deed, J. T. ^ Mode, are, that the deed was signed by William Hunt, Sr., three or four days before his death, that it was not delivered, although some of the children were present. William Hunt, Sr., signed the deed, and the witness further testifies, \u201cand after he had done so he told my father to take it up and keep it, and if he never called for it, to deliver it to the proper person; my father carried it home, and filed it away at his own house; it was not turned over to any of the grantees in the lifetime of William Hunt, Sr.; I saw it in my father\u2019s possession; do not know how defendants came in possession of it. Mrs. Elizabeth Hunt was there when the deed was signed; W. W. Hunt, Sr., signed several deeds at the same time, and he said to my father, W. G. Mode, to take the deeds, and if he did not call for them for him to deliver them to the proper parties;\u201d J. M. Mode also testified that the deed was in the possession of his father, W. G. Mode, after William Hunt, Sr.\u2019s death.\nWe concede that when the maker of a deed delivers it to some third party for the grantee, parting with tire possession of it, without any condition or any direction to hold it for him, and without in some way reserving the right to repossess it, the delivery is complete and the title passes at once, although the grantee may be ignorant of the facts, and no subsequent act of the grantor or any one else can defeat the effect of such delivery. Phillips v. Houston, 50 N. C., 302; Robbins v. Rascoe, 120 N. C., 79.\nThe above cases and the others cited by the learned counsel for defendants sustain that proposition.\nBut in the case under consideration there is no acknowl-. edgment of execution by the grantor. The execution is proven by the witness to the deed after the grantor\u2019s death, and that witness testifies now to facts which completely rebut any presumption of delivery. If the facts testified to by the witness be true, the grantor retained control of his deed and had the right to repossess himself of it at any time. There was never a delivery to the grantee, nor to anyone for her during the grantor\u2019s life. Baldwin v. Maultsby, 27 N. C., 505.\nWe differ with the learned counsel for defendants that the intention of William Hunt, Sr., is in any way involved. The delivery of a deed, a transmutation of the possession, is an essential ceremony to the complete execution of it, and if William Hunt, Sr., had delivered the paper writing to W. G. Mode with an unqualified instruction that it should be delivered to the grantee after the death of the grantor it would have been a good deed from the time of delivery to the witness.\nBut the grantor did not deliver the paper with such unqualified direction. He retained control of it and the parol authority, given to W. G. Mode,, was in law revoked by the death of Hunt.\nIt is contended that although there was no actual delivery or parting with the control of the paper, yet it was operative as a deed if the grantor intended it should be good as such.\nThis position is inconsistent with the very definition of a deed, which is a writing sealed and delivered. The intention of the grantor will not take the place of actual delivery, which is essential in law to the validity of a deed. As said in Baldwin v. Maultsby, supra, \u201csuch an intention cannot overthrow the law.\u201d\nIt is set forth in the text books and adjudicated cases generally, that where the grantor executes a deed and places it in the hands of a third person with instructions to have it delivered and recorded in case of the grantor\u2019s death, but to retain it subject to the grantor\u2019s control until his death, and the bailee held the deed until after the grantor\u2019s death and then delivered it, there is no valid delivery. Baldwin v. Maultsby, supra; 2 Jones Law of Real Property, sec. 1312; 1 Devlin on Deeds, sec. 279 ; Brown v. Brown, 66 Me., 316; Shurtleff v. Francis, 118 Mass.; Jones v. Jones, 6 Conn., 111; Lang v. Smith, 37 W. Va., 725. So long as a deed is within the control and subject to the authority of the grantor there is no delivery, without which there can be no deed. But where the delivery to the third party, is complete during the grantor\u2019s life and the instrument passes beyond the grantor\u2019s control by his act, but the time the instrument is to take effect is postponed until the grantor\u2019s death, and when he dies the third party delivers the deed to the grantee, it is a valid delivery, and the title passes with-it. 1 Devlin, sec. 279, and cases cited. The delivery then relates back to the time when the grantor delivered it to the third party.\nWe think, however, that his Honor erred in directing the jury to answer the first issue \u201cNo.\u201d After instructing them upon the law bearing upon the issue, the Court might well have instructed the jury that if they found the facts to be as testified to by the witness Mode, there was no delivery of the deed, and that they should answer 1st issue, \u201cNo.\u201d The defendants had the right to have the jury pass on the credibility of such witness who was introduced by plaintiff.\nThe value and weight t\u00f3 be given to this testimony is peculiarly within the jury\u2019s province. Ilis Honor should have told the jury that the law presumes that this deed, proved, registered and offered in evidence by the defendants, claiming under it, was executed and delivered at the time it bears dat\u00e9, unless the contrary be shown, and that the burden to show it rests upon this plaintiff. Meadows v. Cozart, 76 N. C., 450; Kendrick v. Dellinger, 117 N. C., 492; Lyerly v. Wheeler, 34 N. C., 291. Whenever the rules of evidence give to testimony the artificial weight of a presumption, the question whether such presumption is rebutted by parol evidence, introduced for the purpose, must go to the jury, unless the truth of such rebutting testimony is admitted. Vaughan v. Parker, 112 N. C., 96; Kendrick v. Dellinger, supra.\nIf the facts testified to by the witnesses, as set out in the record, be true, then the presumption that the deed was delivered is rebutted, but his Honor had no right to pass on the credibility of their testimony.\nFor such error there must be a\nNew trial. \u2022", "type": "majority", "author": "BeowN, J." } ], "attorneys": [ "Gallert & Carson for defendants.", "Plaintiff not represented in this Court." ], "corrections": "", "head_matter": "MRS. M. E. FORTUNE v. HAL. HUNT et al.\n(Filed 9 December, 1908).\n1. Deeds and Conveyances \u2014 Delivery to Third Party \u2014 Conditional Delivery \u2014 Presumption\u2014Evidence\u2014.Rebuttal.\n\u25a0 Tlie execution and delivery of a deed by the maker to a third person must be accompanied by unqualified instruction to deliver, to make such delivery effectual; and when the testimony of the subscribing and only witness tends but to show that the maker signed the deed, and gave it to a third person with instruction to deliver it to the proper person if he never called for it, and that it was not delivered to the grantee in the lifetime of the maker, the presumption of delivery from the unexplained possession of the grantee and its registration is rebutted.\n2. Deeds and Conveyances \u2014 Delivery to Third Party \u2014 Conditional Delivery \u2014 Death\u2014Revocation.\nWhen the- maker of a deed gives it to a third person to deliver, but qualifies his instructions so as to retain control over it, and dies while this condition exists, in law his death revokes the authority thus given; otherwise, when the delivery is complete in grantor\u2019s lifetime, for then it relates back to the time of its delivery to the third person.\n3. Deeds- and Conveyances \u2014 Delivery Essential \u2014 Intent.\nThe actual delivery is essential in law to the validity of a deed, and in its absence the intention of the grantor will not be considered.\n4. Deeds and Conveyances \u2014 Delivered to Third Party \u2014 Presumptive Delivery \u2014 Evidence \u2014 Burden of Proof \u2014 Verdict Directing\u2014 Questions for Jury.\nThe presumption is that a deed duly proven was executed and delivered at the time it bears date. The burden of proof is upon the party seeking to attack its validity to show the contrary. Therefore, the Court erred in directing a verdict, but should have submitted the issue to the jury .with appropriate instruction.\nPARTITION proceedings, tried by Ward, Jand a jury, April Term, 1908, of RutiieREord, upon issues joined in the pleadings before the Clerk.\nThe plaintiff claimed under a deed alleged to have been executed and delivered to William Hunt, Sr., and introduced evidence to establish her contention. The defendant introduced no evidence.\nTJnder the direction of the Court the jury found for plaintiff. From the judgment rendered the defendants appealed, assigning three errors.\nGallert & Carson for defendants.\nPlaintiff not represented in this Court." }, "file_name": "0358-01", "first_page_order": 392, "last_page_order": 396 }