Spottiswood v. Weir

Ross, J. Each of the parties to this suit—plaintiff and defendants—claim under a deed from one August Hemme, who in March, 1878, executed to the plaintiff a deed, which conveyed to him the property in question, unless he had previously conveyed it to the wife of defendant Weir. The question in the case thereof is, whether or not Hemme had previously conveyed the property to Mrs. Weir. It is a conceded fact, that there was no deed of record to Mrs. Weir, but it is a further admitted fact that at the time of the conveyance to the plaintiff, Mr. and Mrs. Weir were in possession of the property, residing there with their family. Some further facts appear with[527]out dispute, and they are in substance these : In 1877, Hemme and the defendant James C. Weir were, and for some years had been, engaged in building speculations, and the house in controversy was one of those erected by them. Hemme was the moneyed man, and he held the titles to the various properties ; he received the proceeds of the sales, kept the accounts of the business, and rendered monthly statements to Weir. One Chambers was his clerk, and one Land his book-keeper. In May, 1877, Weir was largely indebted to Hemme on account of their transactions. On the 3d of May of that year, the house in controversy being completed and ready for sale at the price of $13,000, Weir told Hemme that he would take it to his own account at that sum. Hemme acceded to the proposition, and instructed his clerk, Chambers, to draw a deed for the house, and instructed his book-keeper, Land, to debit Weir $13,000 in the books of account. Chambers drew a deed to the property, which Hemme signed and acknowledged before F. O. Wegener, a notary public, and the sum of $13,000 was debited to Weir on the books. But who was the grantee in the deed, and whether or not it was ever delivered, are the important questions in the case, upon which plaintiff and defendants are at issue. On the part of plaintiff it is claimed that James C. Weir was the grantee, and that the deed never was delivered, and therefore never became operative; while, on the part of the defendants, it is contended that Mrs. Weir was the grantee, and that the deed was delivered, and that under it she went into possession of the property, and has so remained ever since; and further, that although the deed was not put on record, her possession was notice to the plaintiff of her title. Upon the trial of certain special issues, which were submitted to a jury in the court below, and the findings upon which, in favor of the defendants, were afterwards adopted by the court, certain rulings were made, which we think entitle the plaintiff to a new trial.