#### NELLIE GERTRUDE CARROLL and LILLIE CARROLL v. HENRY SMITH et al.

(Filed 8 October, 1913.)

1. Deeds — Delivery—Grantor's Possession — Evidence of Delivery— Transactions with Deceased Persons — Interpretation of Statutes.

Where the title to lands in controversy is made to depend upon the delivery of a deed thereto by H. to A., both of whom are deceased, and there is evidence that the deeds were found after the death of I-I. among his important papers, testimony of the widow of A. that she saw her husband place the deed in his tin trunk is not evidence of a transaction or communication with the deceased, forbidden by the statute, Revisal, sec. 1631.

2. Evidence — Declarations—Interest of Declarant.

Where title to lands in controversy is made to depend upon the delivery of a deed thereto by H. to A., both of whom- are deceased, declarations of H. that he had delivered the deed to A., and made before the defendant had acquired any title, are competent as being against interest and not self-serving declarations.

3. Deeds and Conveyances — Grantor’s Possession — Presumptions— Burden of Proof — Trials—Instructions—Appeal and Error.

The presumption that a deed found in the possession of the grantor has not been delivered has no greater, effect than to place the burden of proof on him who relies upon its delivery to establish his title to the lands in dispute; hence, when there is competent evidence that the delivery was actually made of the deed to the grantee, it was not error for the court to instruct the jury that its possession by the grantor, if they so found the fact to be, 'was a circumstance which they could consider, with further correct instructions applicable to the evidence in the case, upon the issue, which will be assumed when the charge is not otherwise excepted to and it is not sent -up in the record.

Appeal by defendants from Wcurd, J., at May Term, 1912, of SAMPSON.

This is an action to recover a tract of land of 37 acres, wbicb tbe plaintiffs claim Henry. Carroll, from whom the defendants derive their title by devise, conveyed, by deed to their ancestor, Albert Carroll, and the only issue in controversy is as to the delivery of the deed.

*205Tbe deed was probated but not registered, and there was evidence that it was delivered to tbe grantee at tbe time it was signed and placed by him in bis trunk.

After tbe death of Henry Carroll, tbe deed was found in bis trunk with other papers. '

Lillie Carroll, widow of Albert Carroll, testified that she saw Albert Carroll place tbe deed in’ bis tin trunk, and saw tbe deed in tbe trunk, and defendant excepted.

George Melvin, fatber^of Lillie Carroll, testified that be beard Henry Carroll say be bad given Albert bis deed because be was bis dependence, and defendant excepted.

Tbe defendant requested tbe court to charge tbe jury, “That tbe fact of Henry Carroll having tbe possession of tbe deed for tbe 37 acres of land along with bis other title papers, if found by tbe evidence to be tbe. fact, would be presumptive evidence tbat tbe deed bad not been delivered.” Tbe court refused to so charge tbe jury, and stated tbat there was no such presumption, but tbat it was a circumstance only, which the- jury might consider. Defendant excepted.

Tbe jury answered tbe issue in favor of tbe plaintiffs, and from tbe judgment rendered, tbe defendants appealed.

Fowler & Grumpier for plaintiff.

Faison & Wright and G. E. Butter for defendant.

AlleN, J.

Tbe evidence of tbe widow was objected to under section 1631 of the Eevisal, but she did not testify to a communication or transaction "with tbe deceased (Johnson v. Cameron, 136 N. C., 243) nor was her evidence against tbe personal representative of tbe deceased or against any one claiming under tbe deceased. Bunn v. Todd, 107 N. C., 267.’ She simply told what she saw, and against one claiming under Henry Carroll and not under Albert Carroll.

"We can see no objection to tbe evidence of George Melvin, and none is shown in tbe brief. He is not a party to tbe action, has no pecuniary interest in tbe result, and was not testifying to a self-serving declaration, but -to ope made against interest, and before tbe defendants acquired any title.

*206There is authority for the position taken by the defendant, that there is a presumption that a deed found in possession of the grantor has not been delivered; but properly understood, this can mean no'more than that the burden of proof is on the grantee to prove delivery, and we must assume that his Honor charged correctly as to the burden of proof, as the charge is not sent to this Court, and there is no exception that-he did not do so.

Delivery is essential to the validity of a deed, and, in the absence of registration, if the deed is found in possession of the grantor, nothing else appearing, the law says it has not been delivered, and casts the burden of proof on the grantee who al-a delivery, and it adds no additional force to the charge on the burden of proof to say there is a presumption against delivery.

There is, however, evidence in this case of a delivery to the grantee, and it was, therefore, proper for his Honor to charge that possession of the deed by the grantor, if found to exist, was a circumstance which the jury could consider.

In Tuttle v. Rainey, 98 N. C., 513, there was a controversy as- to the delivery of a deed, and the Court said, while commenting upon an instruction given to the jury: “If it was intended to-say that the law presumed a delivery from the possession of the deed, instead of that the law authorizes the jury from the fact to infer a delivery, and, in the absence of rebutting evidence, to act upon it, it would be error.”

We are therefore of opinion, on the whole -record, there is

No error.