Black v. Sharkey

Vanclief, C. Action of ejectment in which the judgment was in favor of the defendant, and plaintiff appeals.

The complaint is in the most general form, alleging plaintiff's ownership and right of possession, and an ouster and withholding of possession by defendant; and the answer is a specific denial of all allegations of the complaint, except as to the withholding of possession.

James Sharkey, uncle of defendant, was the owner of the demanded premises on May 18, 1878, and plaintiff claims title under him by a deed of conveyance of that date, which purports to be an absolute bargain and sale deed in consideration of six hundred dollars, the payment of which is acknowledged in the deed.

The evidence satisfactorily shows that the deed was signed, acknowledged, and placed in the custody or possession of plaintiff by James Sharkey at or about the time of its date, where it remained until the commencement of this action; a period of thirteen years. James Sharkey continued to reside on the land described in the deed until December 15, 1888, when he died, and [280]defendant, as administrator of James Sharkey, has been, in possession ever since. The plaintiff never had actual possession of the land, and never received any rent or profit therefrom. On the trial the defendant contended that the deed was never delivered to plaintiff in the sense required by law to give it effect as a conveyance of the land, for the reason that neither party ever intended that it should have such effect; and the trial court sustained this view.

1. Counsel for appellant contend that inasmuch as there is no allegation of fraud, accident, or mistake in the answer, no evidence dehors the deed was admissible to prove the intention with which the deed was placed in the custody or possession of plaintiff, and especially not admissible to prove that the parties did not intend that the deed should take effect according to its terms.

While it is true that the possession of a deed by the grantee is prima facie evidence that such deed was delivered by the grantor with intent that it should take effect according to its terms, yet such possession is not conclusive evidence of a valid delivery; and “it may be shown by parol evidence that a deed in the possession of the grantee was not delivered.” (Devlin on Deeds, secs. 294, 295, and authorities there cited.)

“And even if the deed is deposited with the grantee, but for a purpose other than delivery, it would not take effect as a deed; nor can a title be derived from a deed which has not been delivered. While, therefore, it is not competent to control a deed by parol evidence where it has taken effect by delivery, it is always competent by such evidence to show that the deed, though in the grantee’s hands, has never been delivered.” (Wash-burn on Real Property, 311.)