Gulley v. Smith, 203 N.C. 274 (1932)

Oct. 5, 1932 · Supreme Court of North Carolina

203 N.C. 274

FLONNIE GULLEY v. ALTON SMITH et al.

(Filed 5 October, 1932.)

1. Evidence D lb — Testimony in this case held not incompetent under O. S., 1795.

Held,, in an action to declare a deed void on the ground that it was never delivered to the grantee who died prior to the institution of the action, testimony offered by the grantor tending to show that the deed had not been delivered is properly admitted and is not incompetent under O. S., 1795.

2. Deeds and Conveyances A e — Deed is not effectual until actual or constructive delivery to grantee.

A deed, although signed by the grantor, is not effectual until actual or constructive delivery to the grantee, and the presumption of' delivery arising from registration may be rebutted by evidence that the registration was inadvertent or fraudulent.

Appeal by defendants from Sinclair, J., at June Term, 1932, of LeNOIe.

No error.

This is an action to have a deed recorded in the office of the register of deeds of Lenoir County declared void, and canceled of record on the ground that said deed was not delivered by the plaintiff, the grantor named therein, to the grantee, under whom the defendants claim, and that said deed was recorded after the death of the grantee.

The jury found that the deed was not delivered by the grantor to the grantee, and upon this finding it was ordered, adjudged and decreed that the deed is void, and that same be canceled on the record by the clerk of the Superior Court of Lenoir County. From the judgment, the defendants appealed to the Supreme Court, assigning errors at the trial.

Sutton & Greene for plaintiff.

D. H. Willis and Shaw & Jones for defendants.

Per Curiam.

There was no error in the rulings of the trial court on defendants’ objections to evidence offered by the plaintiff, or in the instructions of the court to the jury.

The evidence was properly admitted as tending to support the contention of plaintiff that the deed was not delivered by ber to the grantee named therein. The evidence was not incompetent under C. S., 1795.

Tbe instructions to which defendants excepted are in accordance with well settled principles of law. In tbe absence of a delivery, actual or constructive, a deed, although signed by tbe grantor named therein, is not valid as a conveyance of tbe land described therein. Tbe presumption of a delivery arising from tbe registration of tbe deed may be rebutted by evidence showing tbat tbe registration was inadvertent or fraudulent. Tbe judgment is affirmed. There is

No error.