Ballard v. Ballard

55 S.E.2d 316, 230 N.C. 629, 1949 N.C. LEXIS 425

• Court: Supreme Court of North Carolina
• Decided: September 28, 1949
• Status: Published

Opinion

EkviN, J.

The word “deed” ordinarily denotes an instrument in writing, signed, sealed, and delivered by the grantor, whereby an interest in realty is transferred from the grantor to the grantee. Strain v. Fitzgerald, 128 N.C. 396, 38 S.E. 929; Fisher v. Pender, 52 N.C. 483. The requisites to the valid delivery of a deed are threefold. They are: (1) An intention on the part of the grantor to give the instrument legal effect according to its purport and tenor; (2) the evidencing of such intention by some word or act disclosing that the grantor has put the instrument beyond his legal control, though not necessarily beyond his physical control; and (3) acquiescence by the grantee in such intention. Blades v. Trust Co., 207 N.C. 771, 178 S.E. 565; Burton v. Peace, 206 N.C. 99, 173 S.E. 4; Gulley v. Smith, 203 N.C. 274, 165 S.E. 710; Gillespie v. Gillespie, 187 N.C. 40, 120 S.E. 822; Rogers v. Jones, 172 N.C. 156, 90 S.E. 117; Lynch v. Johnson, 171 N.C. 611, 89 S.E. 61; Lee v. Parker, 171 N.C. 144, 88 S.E. 217; Butler v. Butler, 169 N.C. 584, 86 S.E. 507; Huddleston v. Hardy, 164 N.C. 210, 80 S.E. 158; Gaylord v. Gaylord, 150 N.C. 222, 63 S.E. 1028; Fortune v. Hunt, 149 N.C. 358, 63 S.E. 82; Smith v. Moore, 149 N.C. 185, 62 S.E. 892, rehearing denied 150 N.C. 158, 63 S.E. 735; Tarlton v. Griggs, 131 N.C. 216, 42 S.E. 591; Bailey v. Bailey, 52 N.C. 44; Gibson v. Partee, 19 N.C. 530; Kirk v. Turner, 16 N.C. 14; Moore v. Collins, 15 N.C. 384; Morrow v. Williams, 14 N.C. 263; Ward’s Executors v. Ward, 3 N.C. 226. But manual possession of the instrument by the grantee is not essential to delivery. It is sufficient if the grantor delivers the writing to some third person for the grantee’s benefit. McMahan v. Hensley, 178 N.C. 587, 101 S.E. 210; Buchanan v. Clark, 164 N.C. 56, 80 S.E. 424; Barnett v. Barnett, 54 N.C. 221; Wesson v. Stephens, 37 N.C. 559; Gaskill v. King, 34 N.C. 211; Morrow v. Alexander, 24 N.C. 388. Thus, there is an effective delivery where the grantor causes the written instrument to be recorded, or leaves it with the proper officer for recording with the intention that it thereby shall pass title to the grantee according to its purport and tenor, and the act of the grantor is accompanied or followed by the assent of the grantee. Robbins v. Rascoe, 120 N.C. 79, 26 S.E. 807, 38 L.R.A. 238, 58 Am. St. Rep. 774; Phillips v. Houston, 50 N.C. 302; Ellington v. Currie, 40 N.C. 21; Snider v. Lackenour, 37 N.C. 360. In such cases, assent on the part of the grantee is presumed until the contrary is shown if the conveyance be beneficial to him. This is so although the transaction occurs without the grantee’s knowledge. Buchanan v. Clark, supra; Tate v. Tate, 21 N.C. 22; 16 Am. Jur., Deeds, section 389.

The legal battle at the trial was waged around the crucial question of whether the alleged deed of 28 January, 1914, had been delivered to Sherman M. Ballard or to some third person for his benefit by J. T. Ballard. There was testimony for the defendant, Levi G-. Buckner, tending to show such delivery even apart from the rebuttable presumption of delivery arising from the probate and registration of the instrument. Cannon v. Blair, 229 N.C. 606, 50 S.E. 2d 732; Johnson v. Johnson, 229 N.C. 541, 50 S.E. 2d 569.

Tbe plaintiff took tbe stand in her own behalf for tbe avowed purpose of establishing tbe non-delivery of the alleged deed. Tbe defendant, Levi G-. Buckner, reserved exceptions to tbe rulings of tbe trial court permitting plaintiff to testify that tbe instrument in controversy did not exist until eleven months after tbe time of its purported execution and acknowledgment; that Sherman M. Ballard did not pay J. T. Ballard $100.00 for tbe 61 acres as recited in tbe instrument; that Sherman M, Ballard never saw tbe instrument; and that tbe instrument “was not delivered” to Sherman M. Ballard by J. T. Ballard. No facts or circumstances were adduced at tbe trial indicating that plaintiff bad any personal knowledge of any of these matters. This being so, tbe testimony ought to have been excluded on tbe ground that a witness cannot be allowed to testify to tbe nonexistence of a fact, where bis situation with respect to tbe matter is such that tbe fact might well have existed without bis being aware of it. Byrd v. State, 17 Ala. App. 301, 84 So. 777; Compton v. Pender, 132 Ga. 483, 64 S.E. 475; McCosker v. Banks, 84 Md. 292, 35 A. 925; Buxton v. Alton-Dawson Mercantile Co., 18 Okla. 287, 90 P. 19.

Other considerations also demanded tbe exclusion of tbe plaintiff’s statement that tbe deed in controversy “was never delivered” to Sherman M. Ballard by J. T. Ballard. An issue of whether a deed has been delivered presents a mixed question of law and fact. Henry v. Heggie, 163 N.C. 523, 79 S.E. 982; Smith v. Moore, supra. Hence, tbe admission of tbe plaintiff’s conclusion violated tbe evidential principle that a witness may not give testimony which embodies bis opinion as to law. Hart v. Gregory, 218 N.C. 184, 10 S.E. 2d 644; Denton v. Milling Co., 205 N.C. 77, 170 S.E. 107; Trust Co. v. Store Co., 193 N.C. 122, 136 S.E. 289; Parker v. Brown, 131 N.C. 264, 42 S.E. 605; Wolf v. Arthur, 112 N.C. 691, 16 S.E. 843. Furthermore, tbe conclusion of tbe plaintiff that there bad been no delivery of the deed necessarily involved upon tbe record presently presented either a negation of an intent on tbe part of J. T. Ballard to pass title to Sherman M. Ballard, or tbe negation of a purpose on tbe part of Sherman M. Ballard to accept title. Thus, tbe evidence under consideration was also inadmissible under tbe rule of evidence which precludes a witness from expressing bis opinion of another person’s intention in a particular transaction. Stansbury: North Carolina Evidence, section 129; Fenner v. Tucker, 213 N.C. 419, 196 S.E. 357; Minton v, Ferguson, 208 N.C. 541, 181 S.E. 553; Wolf v. Arthur, supra; S. v. Vines, 93 N.C. 493.

Tbe admission of this evidence constituted prejudicial error under tbe circumstances disclosed by tbe record, entitling tbe defendant, Levi GL Buckner, to a new trial on bis plea of sole seizin.

Tbe defendant, Levi Gr. Buckner, contends, however, that we should’ proceed further, and sustain in tbis Court bis motion for a compulsory nonsuit, which was denied in tbe court below.

He asserts upon tbis phase of tbe case that tbe recorded deed of 28' January, 1914, was a lion in plaintiff’s path, barring her claim to dower in tbe 61 acres, and that tbe only competent testimony presented by plaintiff at tbe trial was that relating to tbe custody of tbe deed and tbe possession of tbe land after tbe date of registration of the deed. He-insists that tbe testimony adduced in plaintiff’s behalf indicating that J. T. Ballard bad custody of tbe deed and exercised acts of ownership over tbe land therein described subsequent to tbe recordation of tbe instrument bad no legitimate or logical tendency to show non-delivery because it was consonant with tbe rights which J. T. Ballard expressly reserved in tbe property by tbe instrument itself, and tbe relationship which be bore to Sherman M. Ballard. Cannon v. Blair, supra; 26 C. J.S., Deeds, section 184.

Tbis argument would exert a very persuasive force on thé present record if we were at liberty to ignore tbe incompetent evidence given by tbe plaintiff in person. But tbis we cannot do.

A motion for a compulsory nonsuit under G.S. 1-183 is designed simply to test tbe legal sufficiency of tbe evidence to take tbe case to tbe jury and support a verdict in plaintiff’s favor. It does not present for review-errors committed by tbe court in admitting testimony. Upon a motion for a compulsory nonsuit under tbe statute, all relevant evidence admitted by tbe court must be accorded its full probative force, irrespective of whether it has been erroneously received. 64 C.J., Trial, section 398.

Here tbe incompetent evidence tended to support tbe plaintiff’s claim of non-delivery, and was considered by tbe trial court when it ruled against tbe motion. In conformity to tbe accepted practice, there must be a new trial for error in receiving tbe incompetent testimony. But tbe motion for nonsuit cannot be sustained in this Court, even if it be taken for granted that tbe competent testimony, standing alone, was insufficient to carry plaintiff’s case to tbe jury. “Though the court below, in denying tbe motion, acted upon evidence which we now bold to be incompetent, yet, if tbis evidence bad not been admitted, the plaintiff might have followed a different course.” Midgett v. Nelson, 212 N.C. 41, 192 S.E. 854.

We are unable to accept tbe suggestion that tbe negative answer of tbe jury to tbe second issue supports tbe judgment and renders tbe admission of tbe incompetent evidence harmless error. This is true because this finding of the jury is not determinative of the controversy between the parties. Indeed, it is evident that the submission of the second issue arose out of a misapprehension as to the true function of an acknowledgment.

With the exception of certain statutory provisions relating solely to conveyances by married women and having no application to the instrument in suit, there is no statute making an acknowledgment essential to the validity of a deed. The office of an acknowledgment is merely to entitle a deed to registration. Under our statute, the recording of a deed is essential to its validity only as against creditors and purchasers for .a valuable consideration. G.S. 47-18; Hargrove v. Adcock, 111 N.C. 166, 16 S.E. 16. It necessarily follows that a deed becomes effective as a transfer of title as between the parties to it immediately upon its execution and delivery notwithstanding the lack of an acknowledgment, and binds not only the parties but also their heirs. Norwood v. Totten, 166 N.C. 649, 82 S.E. 951; 1 C.J.S., Acknowledgments, section 12. Moreover, an unacknowledged deed bars the claim of dower of the widow of the grantor if the signing, sealing, and delivering of the instrument occurred before marriage. Haire v. Haire, 141 N.C. 88, 53 S.E. 340.

It is noted, in closing, that it has not been necessary to express any opinion as to the applicability of G.S. 8-51 to any of the testimony at the trial.

For the reasons stated, the verdict and judgment are set aside in so far as they relate to the alleged deed of 28 January, 1914, and the 61 acres therein described to the end that a new trial may be had in respect to the plea of sole seizin interposed by the defendant, Levi G. Buckner.

New trial.