#### ANNIE McMAHAN and Husband, WILLIAM McMAHAN, v. RACHEL PENLAND HENSLEY.

(Filed 3 December, 1919.)

Deeds and Conveyances— Delivery— Intent— Registration— Evidence— Instructions — Verdict Directing.

Tbe registration of a deed to land is only presumptive evidence of delivery, and where tbe evidence tends only to sbow tbat tbe intent of tbe grantor was not to bave it delivered until after ber death, but bad sent it to be registered and received it again, and bad kept it. continuously in ber possession without delivering it, actually or constructively, a charge to-tbe jury is correct, tbat if tbe jury found tbe facts according to tbe evidence, there was not a legal delivery of tbe deed and no title passed thereunder.

Civil actioN, tried before Webb, J.JsA, August Special Term, 1919, of - YaNCey, upon these issues:

“1. Were the deeds for the lands described in the complaint delivered?' Answer: ‘No.’ ” l

“2. Are the plaintiffs the owners in fee and entitled to the possession of the lands' described in the complaint? Answer: No.’ ”

From the1 judgment rendered the plaintiffs appealed.

Hudgins, Watson & Watson fon plaintiffs'.

Charles Hutchins and A. Hall Johnston for' defendant.

Beoww, J.

As stated by Mr. Watson, the learned counsel for plaintiff, there is but one question presented by the record, and that is, Were the deeds from the defendant to her daughter, Annie McMahan, and her-son, S. S. Hensley, delivered ?

The plaintiffs claim under the deed ';from the defendant, Eachel Pen-land Hensley, the mother of the feme plaintiff. The uncontradicted evidence tends to prove that the defendant procured Squire Hutchins to-draw the deeds; one to her daughter, /the plaintiff, and the other to her son, S. S. Hensley.

The defendant testified that she did not intend to /deliver the deeds to-the grantees; that she sent them to' Burnsville by her youngest son,, Andrew, to be probated- and recorded; but that the deedsiare now locked up in her trunk in her home, and that they have not been out of her possession since they were made, except when Andrew had them recorded.

The plaintiff offered no evidence except the official record of the deeds.

The court charged the jury: “If the plaintiff has shown1 that the old lady made’the deed under ;the circumstances that she says'she did, that the magistrate came to her home and she was1, there very sick, and it was-*588ber purpose and desire to make tbe deeds, and sbe wanted to reserve ber life estate, and it was suggested to ber by tbe magistrate tbat sbe could ■do tbat by making tbe deed on its face without reservation,' and then bolding tbe deeds or put tbean in tbe'bands of) some good man'to be ■delivered to' tbe grantees afteriber death; if you find1 sbe accepted tbat mode or method, and tbe deeds were drawn’■ without reservation, being ■set forth in tbe deed, and tbat after being drawn they were delivered to her by tbe drawer of the deeds, Squire 'Hutchinsif you find sbe put these deeds away and tbe next day sbe beard one of ber sons was going toi try to interfere-with this arrangement, with ¡what she bad done with ber property, and try to get bold of tbe deeds, and ¡Lf you find tbat for tbat reason sbe told ber son to carry1 them to tbe clerk’s office at Burns-ville and have them probated, and tben have them recorded, and to bring the deeds back to ber, and tbat pursuant to those instructions ber -son\ brought tbe deeds, and bad them recorded, and took them immediately back toi bis mother, and> tbat sbe has bad them .ever since, and tbat ber purpose and intent was not to deliver them until after ber ■death; if you believe tbat and find those to be tbe facts by tbe greater weight of tbe evidence, tben tbe court charges you there was no delivery •of tbe deeds, and tbe plaintiffs are not tbe owners of tbe land in controversy.

“So taking it tbat you will find these to be tbe facts, I instruct you tbat if you believe all of this evidence that you answer tbe first issue No,’ and tbe second issue No.’ ”

Tbe plaintiff bases ber right to recover upon tbe theory tbat tbe probate and registration of a deed is a delivery in law and cannot be rebutted by parole evidence. We think this is going too far. In Love v. Harbin, 87 N. C., 252, Ruffin, J., says: “It is not intended to say tbat the fact of registration is conclusive as to either tbe execution or probate ■of tbe deed, but only prima facie evidence.” As delivery is a necessary part of tbe execution of a deed, it follows tbat registration is only prima facie evidence of delivery. Bryan v. Eason, 147 N. C., 284, and cases cited in tbe note to Love v. Harbin.

Tbe question of delivery is one of intent, and it was open to tbe de-' fendant to show that tbe deed bad never been in tbe possession of tbe grantee, but bad remained in ber possession, and was brought back to ber as soon as it was recorded. Helms v. Austin, 116 N. C., 755.

This Court said, in tbe case of Gaylord v. Gaylord, 150 N. C., 233: “It is a familiar principle tbat tbe question of tbe delivery of a deed or ■other written instrument is very largely dependent upon tbe intent of tbe parties at tbe time, and is not at all conclusively established by tbe manual or physical passing of tbe deed from tbe grantor to tbe grantee.”

And again tbe Court said, in tbe same case: “And tbe authorities are *589uniformly to the effect that in order to be a valid delivery the deed must pass from the possession and control of the grantor to that of the grantee,-, or to some one for the grantee’s use and benefit, with the intent at the-time that the title should pass or the instrument become effective as a, conveyance.”

We concede that when the maker of a deed delivers it to a third party for the grantee, parting with the possession of it without any condition or 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 can defeat the effect of such delivery. Fortune v. Hunt, 149 N. C., 359. But all the evidence in this case shows that the defendant did not intend to part with the custody of or control over the deeds. The evidence shows that she had them registered on account of the fear that her son, Columbus Hensley, would destroy them. The defendant sent them by her son, Andrew, for registration, with instructions to-bring them back to her. The entire evidence is inconsistent with the-idea of an actual delivery of the deeds, and if believed by the jury to-be true, it is sufficient to rebutt the presumption of delivery arising out. of the registration of the deed.

Affirmed.