Fuller v. Hollis

Supreme Court of Alabama

Fuller v. Hollis

57 Ala. 435

CourtSupreme Court of Alabama

DecidedDecember 15, 1876

StatusPublished

Cited by11 cases

This text of 57 Ala. 435 (Fuller v. Hollis) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fuller v. Hollis, 57 Ala. 435 (Ala. 1876).

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Opinion

STONE, J.

A deed may be delivered as an escrow, to any person other than the grantee, and does not become a -conveyance so long as it remains in that condition, or until the condition is performed upon which it is to take effect. Delivery is essential to the execution of a deed, and until -delivered, it is no deed.—Frisley v. McCarty, 1 Stew & Por. 56; Firemen’s Ins. Co. v. McMillan, 29 Ala. 147. Such delivery may be shown by positive proof, or by circumstances. .“See McClure v. Colclaugh, 17 Ala. 89; Ward v. Ross, 1 Stew. 136; but to be effective as a conveyance, it must appear from ■the circumstances that the deed has passed from the grantor with the intention of actual delivery to the grantee.—See Houston v. Stanton, 11 Ala. 413; McMorris v. Crawford, 15 Ala. 271; Trippe v.John, 15 Ala. 117.

The pleadings and evidence in this record show that the deed of Wilkerson to Brewer never was delivered to the ■latter, but remained with Hollis as an escrow. This case • then stands precisely as the contract was first made, namely: Mr. Brewer in possession, holding only a bond for title, and a large part of the purchase-money unpaid, Mr. Hollis being the owner of the claim. In such ca,se, a purchaser from Brewer, or, at sheriff’s sale of his interest, can, in no sense, be classed a purchaser without notice. To raise that pre- ■ sumption, a fundamental condition is, that Brewer must have had a legal title.—Chapman v. Churm, 5 Ala. 397; Kelley v. Payne, 18 Ala. 371; Bradford v. Harper, 25 Ala. 337; Owen v. Moore, 14 Ala. 640; Wells v. Morrow, 38 Ala. 125; Roper v. McCook, 7 Ala. 318; White v. Stover, 10 Ala. 441; Plowman v. Riddle, 14 Ala. 167. In such case there is a vendor’s lien for the purchase-money, and such lien will not be lost by -the assignee extending the day of payment, and taking a new _note for the purchase-money in his own name.—Conner v. [438]*438Banks, 18 Ala. 42; see Boyd v. Beck, 29 Ala. 703; Flinn v. Barclay, 15 Ala. 626.

We think the chancellor reached the right conclusion, and-on correct reasoning.

Affirmed.

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STONE, J.

A deed may be delivered as an escrow, to any person other than the grantee, and does not become a -conveyance so long as it remains in that condition, or until the condition is performed upon which it is to take effect. Delivery is essential to the execution of a deed, and until -delivered, it is no deed.—Frisley v. McCarty, 1 Stew & Por. 56; Firemen’s Ins. Co. v. McMillan, 29 Ala. 147. Such delivery may be shown by positive proof, or by circumstances. .“See McClure v. Colclaugh, 17 Ala. 89; Ward v. Ross, 1 Stew. 136; but to be effective as a conveyance, it must appear from ■the circumstances that the deed has passed from the grantor with the intention of actual delivery to the grantee.—See Houston v. Stanton, 11 Ala. 413; McMorris v. Crawford, 15 Ala. 271; Trippe v.John, 15 Ala. 117.

The pleadings and evidence in this record show that the deed of Wilkerson to Brewer never was delivered to the ■latter, but remained with Hollis as an escrow. This case • then stands precisely as the contract was first made, namely: Mr. Brewer in possession, holding only a bond for title, and a large part of the purchase-money unpaid, Mr. Hollis being the owner of the claim. In such ca,se, a purchaser from Brewer, or, at sheriff’s sale of his interest, can, in no sense, be classed a purchaser without notice. To raise that pre- ■ sumption, a fundamental condition is, that Brewer must have had a legal title.—Chapman v. Churm, 5 Ala. 397; Kelley v. Payne, 18 Ala. 371; Bradford v. Harper, 25 Ala. 337; Owen v. Moore, 14 Ala. 640; Wells v. Morrow, 38 Ala. 125; Roper v. McCook, 7 Ala. 318; White v. Stover, 10 Ala. 441; Plowman v. Riddle, 14 Ala. 167. In such case there is a vendor’s lien for the purchase-money, and such lien will not be lost by -the assignee extending the day of payment, and taking a new _note for the purchase-money in his own name.—Conner v. [438]*438Banks, 18 Ala. 42; see Boyd v. Beck, 29 Ala. 703; Flinn v. Barclay, 15 Ala. 626.

We think the chancellor reached the right conclusion, and-on correct reasoning.

Affirmed.

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57 Ala. 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-hollis-ala-1876.

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