Doe on the demise of Newlin v. Osborne, 49 N.C. 157, 4 Jones 157 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 157, 4 Jones 157

Doe on the demise of JOHN NEWLIN vs. MATTHEW OSBORNE.

The date of a deed which is proved to have been delivered, is prima facie evidence that it was executed on that day; but where it is proved that it was signed and sealed, but not delivered on that day, it has no operation as a deed, until such time as it is shown to have been delivered, and until such time, any declaration made by the grantor, affecting the title, is evidence.

Tins was an action of ejectmeNT, tried before PehsoN, Judge, at the Fall Term, 1856, of Alamance Superior Court.

Plaintiff’s lessor claimed title of the land in question, by virtue, of an execution sale to him, as the property of Thomas Davis. He showed a judgment, an execution tested at March Term, 1848, and a sheriff’s deed, dated March, 1849.

The defendant produced, in evidence, two deeds, covering the land in question, dated on the 12th of April, 1845. It was proved, by the subscribing witness, that these deeds were drawn by him, at a place some six miles distant from where Davis lived, and signed and sealed by him, on the day they were dated, but that he, Davis, carried them off. They were certified to have been acknowledged at February Term, 1846, of Orange County Court. There was no evidence that these deeds were out of the possession of Davis, the grantor, before being brought forward for probate.

The plaintiff alleged that these deeds were fraudulent and void as to creditors, and made especially to avoid the payment of a debt due to the lessor as executor ; and amongst other things, he proposed to prove declarations of the said Davis, made in May, 1845, that he had left the county, of Orange and gone into Chatham to avoid being sued for this debt, and other declarations made at the same time, tending to show such fraud. This evidence was objected to by the defendant’s counsel, and ruled out by the Court. Plaintiff’s counsel excepted.

Yerdictfor the defendant. Judgment and appeal.

Graham, for plaintiff.

Norwood, and Bailey, for defendant.

Battle, J.

The delivery of a deed is the final act of its execution. It is that which gives it force and effect, and without which, it is a nullity. When a deed is said to be executed, the meaning is, that, with all the other requisites, it has been delivered by the one party to, or for, the other. The date of a deed which is proved to have been delivered at the same time, is prima facie evidence that it was executed on that day; Lyerly v. Wheeler, 12 Ire. Rep. 290. This evidence may be rebutted, by proof that it was not delivered on that day, and its execution must then be referred to the time when the testimony shows that the grantor parted with the possession for the purpose of giving effect to it, and in such a manner as to deprive bim of tbe right to recall it; Baldwin v. Maultsby, 5 Re. Rep. 505 ; Roe v. Lovick, 8 Ire. Eq. Rep. 88 ; Kirk v. Turner, 1 Dev. Eq. Rep. 14. In. the case before us, the testimony of one of the subscribing witnesses, shows clearly, that the deed from Davis to the defendant, was not delivered to the grantee or to any person for him, at the time when it was signed, sealed and attested ; and there is no proof that it was ever afterwards out of the possession of Davis, until he acknowledged it in the County Court, for the purpose of having it registered. That act was a delivery, (Snider v. Lackenour, 2 Ire. Eq. 360,) but it was a delivery, making the instrument operative as a deed, as in other cases, from that time only. The testimony of the 'witness, who was called to prove the declarations of Davis, as to the purpose for which he left the county of Orange, and went into Chatham, related to a time anterior to this, 'and the declarations were, therefore, competent against him, and those who claimed under him, and it was error in the Court to reject them. Eor this error the judgment must be reversed, and a venvre de novo -awarded.

Pee Curiam-. Judgment reversed.