The petition in this case alleges that the deed which is sought to be canceled is testamentary in character, and that there was no delivery. The allegation that there was no delivery of the deed is one of fact, which must be considered as true in determining whether or not the petition will withstand a general demurrer.
The requisites of a deed to real property are stated in the Code, § 29-101, as follows: "A deed to lands must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or someone for him, and be made on a valuaable or good consideration.” The defendant in error contends that a delivery of the deed is not necessary where the grantor reserves a life estate in the property, and quotes from 26 C. J. S. 239, § 42, as follows: “Where the grantor reserves a life estate in the property and its possession and control, his retention of the deed is not inconsistent with the idea that a delivery was
Black’s Law Dictionary (3rd ed.), p. 548, defines delivery in conveyancing as follows: “The final and absolute transfer of a deed, property executed, to the grantee, or to some person for his use, in such manner that it can not be recalled by the grantor.” In 16 Am. Jur. 516, § 142, it is stated: “It is indispensable to the delivery of a deed that it pass beyond the control or dominion of the grantor; and where a grantor retains a deed which he executes in his possession and control until his death without doing anything to indicate an intention to deliver it, it is void for want of a delivery. In other words, where a deed is retained by the grantor, without delivery of it to anyone, with the intent that it shall not operate until his death, no disposition of the property is made thereby.”
Should it be determined that the deed which is sought to be canceled is not testamentary in character, and was intended to convey a present estate, with the right of possession postponed, under the allegations of the petition it could not be effective to pass title by reason of the failure of delivery before the grantor’s death.
If the deed is testamentary in character, it would be of no effect, since it was not executed in the manner which would entitle it to probate as a will. The test to determine whether an instrument is testamentary in character is “the intention of the maker to be gathered from the whole instrument, read in the light of the surrounding circumstances” (Code, § 113-102); and we do not decide the question of whether or not the document attacked is testamentary in character.
The trial judge erred in sustaining a general demurrer to the petition, and dismissing it as to the minor defendants.
Judgment reversed.