Powell v. Powell

GARDNER, J.

Appellant and appellee are husband and wife, though living separate and apart, the wife having left tbe home of tbe husband in May, 1922, and subsequently instituted this suit in ejectment against him to recover tbe land upon which they had resided. From a judgment for the plaintiff, the defendant appeals.

The first assignment of error argued by appellant rests upon the theory that notice or demand .for possession on the part of the plaintiff was necessary to be shown in order to maintain the action under the circumstances of this case. Under the situation here presented, such demand was not essential. The defendant denies plaintiff’s title, and insists he holds adversely and in hostility thereto. Under these circumstances previous demand is unnecessary. The íaw does not exact a useless procedure. 19 Corpus Juris, 1071; Alexander v. Wheeler, 69 Ala. 332 .

Upon the merits, the case turned upon the question of delivery of the deed executed by defendant to plaintiff while the former was in financial difficulties. The deed was written by one Price, acting for defendant, and before whom it was signed and acknowledged on December 19,1912, and filed for record by Price for defendant in the probate office on the same day. Defendant insists he signed and acknowledged the deed on Price’s advice that it would amount to nothing, and left it with him for record and to be returned to him, which he ‘States was done, being forwarded by Price to him by mail; that his wife did not know anything about the transaction, and that he kept the deed in his trunk; that after the separation the plaintiff came back to the home and secured the deed from the trunk.

Plaintiff, on the other hand, insists that upon the deed being placed on record, it was returned to her by the probate judge; that' she did not get it from defendant’s trunk; that her husband told her about the transaction, and that if she would pay taxes on the land for ten years, then no one could take it away from her. For some of the years she paid tie taxes and defendant assessed the land for taxes in her name The record of the deed was prima facie evi *289 dence of delivery, but which, of course, may be rebutted by proof tending to show that in fact no delivery was intended. Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606 , 53 So. 812 ; Napier v. Elliott, 146 Ala. 213 , 40 So. 752 , 119 Am. St. Rep. 17 ; Napier v. Elliott, 177 Ala. 113 , 58 So. 435 ; s. c., 162 Ala. 129 , 50 So. 148 ; Loring v. Grummon, 176 Ala. 236 , 57 So. 818 ; Coulson v. Scott, 167 Ala. 606 , 52 So. 436 .

If, however, the deed was never delivered to the grantee who is sui juris and placed on record by the grantor with no intention of delivery to the grantee, hut only to mislead creditors, there would be no delivery and the deed would not operate as a conveyance. Loring v. Grummon, supra; Coulson v. Scott, supra. The following excerpt from Gulf Red Cedar Co. v. Crenshaw, supra, is here pertinent:

“The true test of delivery is not as to what was actually said or done or what became of the conveyance, but whether or not the grantor intended to reserve to himself the locus poenitentias. If he did, there is no delivery and no present intention to divest himself of the title to the property. Griswold v. Griswold, 148 Ala. 241 , 42 South. 554 , 121 Am. St. Rep. 64 . If, on the other hand, he parts with the control of the deed or does any act or says anything whereby he evinces an intention to part with the dominion over it and to pass it to the grantee, though he may retain the physical custody of the instrument, or whether it be turned over to another or placed upon the record, the delivery is complete if made with the intent that it was to so operate, and regardless of what was said or done in order to perfect same.”

The third assignment of error relates to the action of the court in giving charge 2 for plaintiff. We think the charge correctly states the rule as to a delivery of the deed and is not subject to the criticism that the record of the deed alone would suffice as the charge expressly hypothesizes the delivery of the deed for record to the probate judge for her.

The only remaining assignments of error (7, 8, 9, and 10) have reference to the refusal of defendant’s charges B, C, D, and E.

In the oral charge of the court the jury was instructed that the record of the deed was only prima facie evidence of delivery, and may be rebutted by other evidence showing no intention of delivery — all of which was submitted for the jury’s determination. Like instructions were embraced in charge 5, given for defendant. We are of the opinion, therefore, that the substance of the above refused charges was sufficiently embraced in the oral charge of the court and in the given charge referred to. There was, therefore, no reversible -error shown.

Moreover, it would seem these charges had a misleading tendency in that the grantor’s mistaken conception of the question of title as advised by the scrivener would suffice to destroy the validity of the deed, notwithstanding there had been a full and complete delivery of the deed to the grantee with intention to pass all control thereof to her, and without the grantor reserving to himself the locus poenitenthe. 18 Corpus Juris, 200, and authorities cited in note 34. The charges had another misleading tendency as calculated to impress the jury there could be'no delivery unless the plaintiff actually received the deed, although the jury may find delivery to the probate judge for record sufficed as a delivery.

We have considered the assignments of error argued by counsel for appellant, and find no reversible error. The judgment will accordingly be here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.