CLARK, C. J., dissenting. HOKE, J., did not sit. After stating the case: We are of opinion that the defendants in this case are completely foreclosed by the judge's findings *Page 49 of fact. Parties can have their causes tried by jury, by reference, or by the court. They may waive the right of trial by jury by consenting that the judge may try the case without a jury, in which event he finds the facts and declares the law arising thereon. Revisal, sec. 540. His findings of fact are conclusive, unless proper exception is made in apt time that there is no evidence to support his findings or any one or more of them. The present Chief Justice, in Matthews v. Fry, 143 N.C. 384, thus states the procedure in such cases: "The parties waived a jury trial and agreed in writing that the judge should find the facts and enter judgment thereon as upon the facts so found he might decide the law to be. The judge found the facts and entered judgment thereon in favor of the defendant. When the certificate of opinion was presented in the court below, the plaintiff moved for judgment in accordance therewith. The defendant resisted this judgment and asked for trial denovo, and insisted that some of the findings of fact had been made by the judge without any evidence to support them. The findings (61) of fact by the judge, when authorized by law or by the consent of parties, are as conclusive as when found by a jury, if there is any evidence," citing Branton v. O'Briant, 93 N.C. 103; Roberts v. InsuranceCo., 118 N.C. 435; Walnut v. Wade, 103 U.S. 688. The findings have the force and effect of a verdict. This is also the rule in other jurisdictions. Griffith v. Manufacturing Co., 115 Ga. 592. The point was expressly decided, with reference to the delivery of a deed, in Avertv. Arrington, 105 N.C. 377, where it was held that the finding as to delivery, supported by some evidence, was not reviewable here. This question is important, for a bare reference to the judgment will show at once that the judge has found that, in fact, there was a delivery of the deed by the Franklins to W. C. Clark for Raymond Buchanan. The following two findings, aside from others of equal force, may be selected as conclusive upon this question:
"1. That after the due execution of the said deed by the defendants Franklin, and the probate of the same by the said justice of the peace, the said deed was delivered to the said defendant W. C. Clark, for said Raymond Buchanan, who was then in the State of Kentucky.
"2. That at the time of the execution of the first deed, the grantors therein and the said W. C. Clark intended that the land in controversy should belong to Raymond Buchanan in fee simple."
Conceding for the sake of discussion, that the defendant W. C. Clark has distinctly excepted, upon the ground that there is no evidence to sustain this finding, which may be questionable, we yet think that the evidence is sufficient for the purpose. The deed was prepared on 16 March, 1910; actually delivered to defendant W. C. Clark on the same day, for *Page 50 Raymond Buchanan, his son, after having been duly probated, and was registered 8 May, 1912. C. F. Franklin testified that he delivered the deed to W. C. Clark, who said that he "wanted the land deeded to Raymond." Mrs. Franklin testified that "W. C. Clark had them (62) to make the deed to Raymond, so his other children could not knock him out of it," and further, that W. C. Clark took the deed, said nothing about delivery, but that he wanted Raymond to have it. The second deed was executed by the Franklins to W. C. Clark after the death of Raymond Buchanan, and on 21 November, 1911, and there was no consideration for it. The Franklins told Clark they did not want to make the second deed, as it was illegal, they having already made one to Raymond Buchanan, and Clark gave them the paper-writing, agreeing thereby to indemnify them against damages for making the second deed. All this, of itself, was evidence sufficient to support the findings, without any reference to other testimony in the case. There could not well be a "second" deed unless there had been a "first" one. The Franklins simply signed the paper, acknowledged it as their act and deed before the justice, and delivered it to W. C. Clark, who accepted it with the distinct understanding between them that he held it for his natural son, Raymond Buchanan. This was all done at the time. He so held it for a year and eight months or more, and then the second deed was made.
After the first deed had vested the fee-simple estate absolutely in Raymond Buchanan, nothing that the parties did afterwards, without his consent, could divest it. It makes no difference what the undisclosed or unexpressed intention of W. C. Clark was; having received the deed for his son, he is bound by his act, and the title then passed from the grantors, the Franklins, to Raymond Buchanan. The deed had passed out of the possession of the Franklins and they had lost control of it and all power of recall, and they so regarded the transactions. This is the supreme test of a delivery. In Phillips v. Houston, 50 N.C. 302,Judge Battle clearly stated the rule: "The delivery of a deed `depends upon the fact that a paper, signed and sealed, is put out of the possession of the maker.' That, we think, is the true test, and if it appears that the grantor, or donor has parted with the possession of the instrument to the grantee or donee, or to any other person for him, the delivery is complete, and the title of the property granted or given thereby passes. But it will be otherwise if the grantor or donor retain any (63) control over the deed; as if he, when he hands it to a third person, request him to keep it and deliver it to the person for whom it is intended, unless he shall call for it again. These principles will be found to govern all the cases, beginning with Tate v. Tate,21 N.C. 22, running through Baldwin v. Maultsby, 27 N.C. 505; Snider v. *Page 51 Lackenour, 37 N.C. 360; Ellington v. Currie, 40 N.C. 21; Roe v.Lovick, 43 N.C. 88; Gaskill v. King, 34 N.C. 211; and Newlin v.Osborne, 49 N.C. 157, and down to Airey v. Holmes, ante, 142. Tried by the above mentioned test, the delivery of the deed, in the present case, must be declared to be complete. The donor handed the paper, signed and sealed, to a third person, for the use of the donee, without any reservation whatever, and when it was returned to her she immediately handed it to another person, for the donee, without the slightest intimation that she was to have any control over it. The delivery, however, was perfect when the instrument was handed to the first person, and it made no difference whether it was registered before or after the donor's death." This case, at a long interval, but after being thoroughly approved as laying down the correct doctrine, was followed by Robbins v. Rascoe, 120 N.C. 79, and Fortune v. Hunt, 149 N.C. 358, in which Justice Brown reiterated the principle as follows: "When the maker of a deed delivers it to some third party for the grantee, parting with the possession of it, without any condition or any direction as to how he shall hold it for him, and without in some way reserving the right to repossess it, the delivery is complete and the title passes at once, although the grantee may be ignorant of the facts, and no subsequent act of the grantor or any one else can defeat the effect of such delivery," citing Phillips v. Houston, supra, and Robbins v. Rascoe, supra. SeeTate v. Tate, 21 N.C. 26; Hall v. Harris, 40 N.C. 303. "A deed is good if delivered to a stranger to the use of the grantee, and at the time it was thus delivered." Threadgill v. Jennings, 14 N.C. 384. It appeared in Tate v. Tate, 21 N.C. 26, that David Tate executed a deed of bargain and sale conveying land to his infant children, and delivered the deed to their uncle, Hugh Tate, in whose possession it remained until his death, when the bargainor went to the widow (64) of Hugh Tate and obtained the deed before it was registered and canceled it by tearing off his signature and that of the witness, and he, David Tate, conveyed the same property to another. The delivery of the deed was upheld, the Court saying: "Where the maker of a deed parts from the possession of it to anybody, there is a presumption that it was delivered as a deed for the benefit of the grantee, and it is for the maker to show that it was on condition, as an escrow. Such a delivery to a third person is good, and the deed presently operates, and infants may assent to such a deed to themselves, and their assent is presumed until the contrary appears," citing several English cases. JudgeHenderson said in Kirk v. Turner, 16 N.C. 14: "A delivery of a deed is in fact its tradition from the maker to the person to whom it is made, or to some person for his use; for his acceptance is presumed *Page 52 until the contrary is shown. It being for his interest, the presumption is, not that he will accept, but that he does." The facts in Morrow v.Alexander were that a father, residing in South Carolina, signed and sealed a deed to his daughter, residing in North Carolina, and delivered it in South Carolina to his son, to be given to his daughter; held by this Court that the delivery to his son was complete, and the title passed, citing Gaskill v. King, 34 N.C. 211, which cites and sustains Tate v.Tate, supra. McLean v. Nelson, 46 N.C. 396, is also in point, and is to this effect: "When one delivers a deed to a third person in the absence of the grantee, the latter is presumed to accept it, so that it forthwith becomes a deed, and the legal effect is to pass the property. This presumption may, of course, be rebutted by proving that the party refused to accept it; but until he refuses, his assent is presumed for the purpose of giving effect to the instrument as a deed. Ut res magis valeatquam pereat." In the last case, Judge Pearson rests the presumption of an acceptance by the grantee, not only upon the benefit conferred by the deed and the further presumption that a man will take advantage of that which advances his own interests, but says that the reason lays deeper, and that it also rests upon the maxim ut res magis valeat (65) quam pereat. The presumption of assent on the part of the grantee remains until there is a dissent by him or his heirs, and is sufficient to vest the title.
The plaintiff, who is his heir, expressly assents to the conveyance, and, therefore, holds an irrevocable title to the land conveyed by the deed. No one, it is true, can be forced to take a title against his will, but the right of dissent prevents this from being done. It is the delivery to the third person for the grantee that passes the title, upon his presumed assent; the deed, though, is put beyond the control of the grantor, and his power of recall is forever gone, because, as to him, it has been delivered. This is the principle established in the earliest period of this Court, and it has been followed ever since. It was illustrated practically in Phillips v. Houston, 50 N.C. 302, where it was shown that the donor signed and sealed the deed and delivered it to Holland, the witness, and requested him to take it to the courthouse and have it recorded, which was not done until after the donor's death; it was held that the delivery to the first person (Holland) was perfect, and it made no difference whether it was registered before or after the donor's death, the Court saying: "In Hall v. Harris, 40 N.C. 303, it was said by the Court that the delivery of a deed depends upon the fact that a paper signed and sealed is put out of the possession of the maker. That, we think, is the true test, and if it appears that the grantor or donor has parted with the possession of the instrument to the grantee or donee, *Page 53 or to any other person for him, the delivery is complete, and the title of the property granted or given thereby passes. But it will be otherwise if the grantor or donor retains any control over the deed; as if he, when he hands it to a third person, requests him to keep it and deliver it to the person for whom it is intended, unless he shall call for it again. These principles will be found to govern all the cases, beginning withTate v. Tate, 21 N.C. 22, and then a large number of North Carolina cases are cited." To those may be added two of recent date in this Court, Helms v. Austin, 116 N.C. 751, and Frank v. Heiner,117 N.C. 79; and also Adams v. Adams, 21 Wall. (U.S.), 185;Hedge v. Drew, 12 Pick. (Mass.), 141. The Franklins, when they (66) delivered the deed to W. C. Clark, said absolutely nothing indicating that they intended to reserve the least control over the deed. They parted with it unconditionally and the title at once passed to the grantee. Nothing that was done afterwards by them alone would destroy its efficacy as a deed, or even impair it.
It is unquestionable, too, that probate and registration of a deed furnish presumptive proof of its delivery, and were, therefore, additional evidence to sustain the finding of the fact. Fortune v. Hunt, supra. They were more than this, being prima facie evidence of the delivery, and sufficient in themselves and even as against opposing proof, to support the finding as to the fact of delivery, it being for the judge, acting like a jury would, to weigh the evidence and decide upon its preponderance. If there was any evidence, as we have shown, the finding cannot be disturbed.
The supplemental finding as to the intention of W. C. Clark, that his son should have the land, as his part of the estate, so that he could share with the other children, tends to strengthen the views already stated. The death of his son so soon was an event he may not have contemplated, but it was accidental, and did not alter the fact of the delivery, or tend to disprove it, but rather the contrary.
The act of 1885, ch. 147 (Revisal, sec. 980), has no application, as defendant is admittedly not a purchaser for value, and the judge so finds, and the circumstances of the case would exclude him from its benefits.Austin v. Staten, 126 N.C. 783.
Of course, the decision of this case must rest upon a correct understanding and statement of the facts as found by the court. The salient facts are these:
1. That after the due execution of the deed by the Franklins to Raymond Buchanan, and the probate of the same by the justice of the peace, it was delivered unconditionally to the defendant W. C. Clark, for Raymond Buchanan, who was then in the State of Kentucky. This is the judge's sixth finding of fact. *Page 54
(67) 2. The deed of the Franklins to Raymond Buchanan was executed and delivered by them to W. C. Clark for him 16 March, 1910, and the subsequent deed of the Franklins to W. C. Clark, which they told Clark they did not have the right to make, was executed on 21 November, 1911, or one year and eight months after the delivery of the other deed, and not even anything said between them about it during this long interval of time.
3. W. C. Clark, on that day (21 November, 1911), when he insisted on the execution of the deed to him by the Franklins and gave them the writing admitting the execution of the prior deed, had full actual notice of the latter deed. This is admitted. This, of course, is not notice under the Connor Act, but he was not a purchaser for value, as the judge expressly finds, having paid nothing for the deed. This was also admitted on the argument. To hold that he is protected by that statute would violate its very principle, and would enable him to perpetrate a fraud upon his son, for whom he voluntarily held the other deed.
4. It is perfectly clear that the Franklins parted with the possession of the deed with intent to pass the title to Raymond Buchanan and put the same beyond their control or recall. They so say, and the judge so finds. They could not have recovered the deed or the land by action. The title, therefore, passed out of them, and there is no one in whom it could have vested except Raymond Buchanan, as there was no intention in the minds of the parties to vest it in any one else. W. C. Clark so understood it, as he said: "I gave the deed to my wife to hold; I was acting for this boy, though he did not know it, and I was not his agent." But this is evidence, and we must abide by the facts as found by the judge, which plainly fix him with the intention to accept the deed, not for himself, nor for any one else, but his son alone. No subsequent change of mind can affect the result.
5. The additional finding of the court, under the certiorari, goes no further than to show an undisclosed or unexpressed intention of W. C. Clrak [Clark] to do something which he did not do at the proper time, and is based altogether upon evidence as to what he afterwards, and long afterwards, said about it, and after his son had died. He could not (68) thus recall a delivery already completely made, and if we should so hold, no man's deed would be safe from attack, and every title in this State would be in constant jeopardy, depending, not upon what a grantor may have done, but upon his uncommunicated intentions or the thoughts hidden in the inner recesses of his mind, even if he had them. It will place every grantee at the mercy of his grantor.
No error is disclosed in the record.
No error.
HOKE, J., not sitting. *Page 55