Williams v. Williams

1. Delivery of deed—in case of voluntary settlements. The presumption of the delivery of a deed in case of a voluntary settlement is stronger than in a case of bargain and sale. 2. Same—sufficiency of evidence to show a delivery. If a grantor, with or without any previous arrangement with the grantee, executes a deed, and has it recorded, and notifies the grantee, who, by words or acts, accepts the conveyance, the delivery of the same will be sufficient, as the actual possession of the deed by the grantee is not indispensable. 3. The declaration of a father of his intention to convey land to his sons, the execution of the deed, the recording of the same with knowledge of its contents and legal effect, his declaration of having made such deed, and the grantees entering on the land, repairing fences, clearing land and setting out fruit trees thereon, when shown, will be sufficient evidence of the delivery and acceptance of the deed, and passes the title beyond the grantor’s power of resumption.

Writ of Error to the Circuit Court of Clay county; the Hon. C. C. Boggs, Judge, presiding. Plaintiff in error filed a bill in chancery in the circuit court of Clay county, seeking to set aside a deed made by him to defendants in error. By his original bill he averred the deed had been executed by him and placed on record, and there was no consideration for its execution, and it had never been delivered. An amendment was filed, by which it was further averred that appellant intended to make a will, and devise the premises in the deed described to his three sons, and went to a justice of the peace for that purpose, where he was advised that a deed would have- the same effect as a will, and complainant relied upon that advice and executed a deed, believing and intending it should have the same effect as a will, and did not intend to place the title beyond his control, and that he did not understand the effect of the instrument until after he had it recorded, but all the time believed it had the effect of a will in law and fact. The deed was made on September 12, 1891, and named a consideration of $1500, and a reservation to the grantor of the full possession and control of the land during his natural life, and the bill avers that the consideration was never paid. The answer admits the $1500 was never paid, but avers the plaintiff in error informed the defendants that a deed had been made by him conveying the land to them, and that they had made improvements on the land by reason of the conveyance, and plaintiff knew they were so doing. The record shows that plaintiff informed defendants and said to others he had conveyed the land to defendants, and they could improve the same. He had the deed recorded, and stated the purpose of so doing. Some time prior to the execution of the deed, his wife, the mother of these defendants, was ill, and died prior to the execution of the deed by plaintiff, and before her death she gave to one of the defendants money and notes to the amount of over $200. Before the execution of the deed plaintiff requested the defendant who had possession of that money and notes to turn the same over to him, the plaintiff, stating he was going to convey the land to the defendants in error. . The mother of defendants in error died in 1890, and the deed was executed in 1891, and some time subsequent thereto plaintiff in error again married, and afterward filed the bill in this cause. On hearing, the circuit court dismissed the bill, and the complainant sued out this writ of error.