Bender v. Barton

52 So. 26, 166 Ala. 337, 1910 Ala. LEXIS 323

• Court: Supreme Court of Alabama
• Decided: February 3, 1910
• Status: Published

Opinion

ANDERSON, J.

The main question involved in this appeal is whether or not a certain deed from Geo. W. Barton, Sr., and wife, to Geo. W. Barton, Jr., was delivered before the contract of sale between Barton, Jr., and the appellant, Bender was made. The proof shows that there was no actual delivery at the time of the signing and acknowledgment of same and negatives all idea of any intention of a present delivery. It appears that the grantor prepared and executed the deed for the purpose of delivering it at such future time as he might determine, and that he had never parted with the control of the instrument, and that it was taken from the drawer- by the grantee without his father’s consent. There is a conflict as to whether Barton, Sr., put it in the drawer, or had his wife to do so, or whether or not he gave it to her to keep; hut in either event the evidence shows that the control was reserved to the grantor, and that it was not intended as a delivery to the grantee.

There is no merit in the contention that Barton, Jr., has an equity in the land that can be subjected to complainant’s contract of purchase. He had paid nothing on the land, and had no claim thereto until a delivery of the deed by his father, who merely intended to give him the land at some future day.

The decree of the chancery court is affirmed.

Affirmed.

Dowdell, O. J., and Mayfield and Sayre:, JJ,, concur.