Phillips v. Houston, 50 N.C. 302, 5 Jones 302 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 302, 5 Jones 302

JOHN PHILLIPS v. WILLIAM J. HOUSTON, Adm'r. of FRANCES PHILLIPS.

Where the donor in a deed of gift, handed it to a third person, signed and sealed, to have it proved and registered, without retaining any authority or power to control it, which, on being returned to the donor, was delivered to another person in like manner and for the like purpose, but who neglected to have it registered until after the donor’s death, it was Held that the delivery to the first person, to whom it was handed, was a complete delivery.

AotxoN of detinue, tried before Caldwell, J., at the last Spring Term of Duplin Superior Court.

The defendant’s intestate was the mother of the plaintiff, who resided in the State of Alabama ; it was in proof that she called upon one Kinnair, to draw a deed of gift to the plaintiff' for Jack, declaring that the plaintiff was one of the oldest of the family, that he had worked hard and helped make the property of the estate, and had never received his full share of it, and that she wished to give Jack to him. Thereupon Kinnair wrote a deed of gift to the plaintiff, which was signed and sealed by her, and witnessed by the said Kinnair and one Holland. She delivered the deed to Holland, and requested him to take it to the court-house and have it recorded. This he promised, but failed to do, upon the allegation that the donor had given him no money to pay the fees. Holland returned the deed to the donor, who shortly thereafter gave it to one Kennedy, with directions to deliver it to one Moore, with a request that he should take it to court and have it recorded. Kennedy placed the deed among his papers, where it remained until the donor’s death, he alleging that he forgot it. After the death of Mrs. Phillips, Kennedy gave the deed to Moore, who had it proved and registered. The jury returned a verdict in favor of the plaintiff, subject to the opinion of the Court, upon the question whether the deed was duly delivered, under the circumstances above stated. On consideration, his Honor was of opinion with the plaintiff upon the question reserved, and gave j udgment on the verdict. The defendant appealed.

William A. Wright, for tbe plaintiff.

J. II. Bryan, for tbe defendant.

Battle, J.

In the case of Hall v. Harris, 5 Ire. Eq. 303,\ it was said by the Court, that the delivery of a deed “ depends upon the fact that a paper, signed and sealed, is,put out of the possession of the maker.” That, we think, is the true test, and if it appear that the ¡grantor, or donor, has 'parted with the possession of the instrument to the grantee or donee, or to any other person for him, the delivery is complete, and the title of the property granted, or given thereby, passes. But it will be otherwise, if the grantor or donor retain any control over the deed; as if he, when he hands it to a third person, request him to keep it and deliver it to the person for whom it is intended, unless he shall call for it again. These principles will be found to govern all the cases, beginning/ with Tate v. Tate, 1 Dev. and Bat. Eq. 22, running through Baldwin v. Maultsby, 5 Ire. Rep. 505; Snider v. Lockenour, 2 Ire. Eq. 360; Ellington v. Currie, 5 Ire. Eq. 21; Roe v. Lovick, 8 Ire. Eq. 88; Gaskill v. King, 12 Ire. Rep. 211, and Newlin v. Osborne, 4 Jones’ Rep. 157, down to Airey v. Holmes, ante, 142. Tried by the above mentioned test, the delivery of the deed, in the present case, must be declared to be complete. The donor handed the paper, signed a/nd sealed, to a third person, for the use of the donee, without any reservation whatever, and when it was returned to her, she immediately handed it to another person, for the donee, without the slightest intimation that she was to have any control over it. The delivery, however, was perfect, when the instrument was handed to the first person, and it made no difference whether it was registered before or after the donor’s death. His Honor was right in giving judgment for the plaintiff, and the judgment must be affirmed.

Pee CueiaM, Judgment affirmed.