Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1866-01-13

county. At the March term. ejgbte
hundred and siNty-one, Of the Circ
Court for said county, trial was h;
which resulted in a verdict ami iuigme
in favor Of the defendants. The plai
tit moved the Court for a new Uri
which, being refused, he has prosecut
an appeal 10 this Court.
Both parties claim tide 10 the land
controversy under Mathew Corlev. N
defendant, Sarah, Is the widow, and q
other defendants are the children Of sa
Mathew Corley by the said Sarah, al
the plaintiff Is the child of the "a
Mathew by a former marriage.
The plautiff, having filed an affiday
stating the original had been lost or mi
laid, ar wss frauduleutly suppressed {
the defendants. offered and read in ey
dence, without objection, copy of dee
OF Gift Of the land i'm controversy frol
his father 10 himself daled Decemlt
first, eighteen hundred and thirty-seveI
the execution Of which was acknow
edged before the clerk Of the count
court for Smith county, on the fourth {
December, and which was registered Il
the office Of the register for said count
on the thirteenth day of Decembel
eighteen hundred and thirty-seven.
The defendants read the copy Of TIA
will Of Mathew Corlev, dated on tH
eighteenth of October, and admitted 4
probate in the county court of said count,
at the November term thereof, iu eiEiiteei
hundred and fifiy-nine, by which he de
vised the land ia controversy 10 th,
defendant Sar5h, for life, or during hel
widowhood, with remainder 10 the Othel
defendants.
It appears from the proof that Matthew
COrley was q man in humble circumstan-
ces and was about eighty years Of age al
the time of his death, in October, eigh-
teen hundred and iifty-nine, and had
continued 10 reside upon and cultivate
the land from The date of the deed ina
eighteen hundred and thirty-seven up 10
The time OF his death, and during that
time frequently rented portions Of it 20
Others. The plaintiff was abogt sixteen
wears Of age at the date of the deed, and
cantinued 20 reside with his father until
about eighteen hundred and lfty-Oue,
when he went 20 the state of Kentucky
In eighteen hundred and hfty-One, he
rented part Of the land from his father,
which ne cultivated to himself and for
which be paid the rent. On ons occas-
ION, and about one year before the death
Of Mathew Corley, witness Hale was Al
his house and told him that he
make a will, and provide lur his
wife aud little children, 10 which
he replied he had no right 10 the
land L belonged 30 William he had
made him a deed of gift 20 ID many
years ago, and expressed desire to pro
vide for his wife and little children ii he
had anything 20 give them.
Witness Williams states that some
four or five years before his death, Ma
thew Corley was talking Of moving
AWAY, when WitnesS went % him and
proposed t0 buy the land, to which Cor
ley replied the lAnd dia not belong 10
him ID belonged 90 his son Miliism.
ON another occasion he asked turiey
why he did not clear mp a certain portion
of the land, 10 which he replied he was
afraid William would not ike IL
that after his death it belonged to
William.
Witness Pope states Corley had fre-
quenty told him the land belonged 10
William, but that he had it for Bis life
time uo various persons and az different
times, be stated ~ q reason for not cut
ting wood on the land, that iI belonged
to William, aud he was afraid William
would not like it.
There is no proof in the record showing
that Mathew Corley ever, al any time
subsequent 10 the date Of the deed, until
a short time before his death, in any
manner disputed Williams title to the
land, or thai ia any manner, at any
time, he denied the execution and de-
livery OF the deed Of gift or that, at sny
time after the date Of the deed in eighteen
hundred and thirty-seven, up 70 q
short time before his death, he
set up any claim 10 the land as
his own But, ON the contrary,
the record does show that on all
occasions. from the date of the deed iu
eighteen hundred and thlFty-seven, up
10 the time Of his death, iu October
eighteen hundred and iifty-niBe, he ae-
knOwiedged the execution and existence
Of the deed and likewise, from the date
OF the deed up 10 a short time before hl-
death, recognized the validity of the
donors title under t. There is no proof
in the record showing any intention on
The part Of the donor To retain Possession
OF tie deed, OF who had the actual Gus
t0dy thereof after its registration, or any
purpose ON his part to do anything more
than was duue-rO give full elect thereto
IN vesting the title ln the doI8e; and, M
fact, 81 anything further was wanting, the
declaration of the donor, made only
short time before his death, aud intro
duced by the defendants for the purpose
of ay0idIug the deal and defeating the
doueeis title under 10: that he had decided
the laud to William, bat that he had done
50 sin defraud, % 10 keep from paying "a
security debt, as well A. the statement
that William had agreed 10 take care OF
him for the land, but had failed to DO so,
clearly negative the assumption Tat
ANYTHING lad been left und0ne 10y the
donor. which he believed to be necessary
OH his part 20 give effect tg tie deed.
Ihe-e declarations, made for the purpose
Of defeating the plaintiff = title, Is
tinctly place the defense upon other
grounds Aud now, notwithstanding the
great loss Of time and The solemn decla-
yau1Es pf Mathew 00rley, concerning ihe
making tine deed Of gift and the title 10
the land, the principal question relied
upon IN argument here, as we'll as Ia the
pgurt below, a. would appear nom the
charge OI the utJait Judge, j. that the
deed of gift OF eighteen hundred and
thirty-seyen, although acknowledged
aud registered, is imperative, because,
a. it b. Insisted, il was never delivered qT
intended to operate a. a conveyance OF
ape lanur ana tAis We infer IL have been
ne conclusion Of the jury. We think
THIS assumption is not only wholly un-
sustained, but it il clearly met and
overtlHoWn by the testimony in the
cause,
The counsel fur defendants rely upon
the eases oi Taylor us. Taylor, two Hump.
hve hundred and ninety-seven; Martin
as. Ramsey nNe lump, three hundred
and nnety-iouri Melvin rs. Ir0ust,
one Sneedi one hundred and eighty-six.
and Mailing ts- Mailing, two Sneed, six
hundred and thirty, as authorities iu
point insuyport Of the proposition.
In the ease Of Taylor Us Taylor. one
Taylor made a sealed instrument by the
terms Of which he gave b his son certain
slaves IL was witnessed and deposited
in his trunk, with q declaration it should
take effect after his death, and not be-
fore. Ina that case the court held there
had been no delivery Of the instrument
aud delivery being essential % constitute
q deed Of gift, the instrument could not
be set up a. such.
In the case Of Martin rs. Ramsey com
plainants intestate, executed Qeed OF
gift 10 his daughter Elizabeth for two
slaves, which remained in his possession
until his death, aud being found among
his papers, was afterwaTd deposited az
the Office OF she clerk Of thecOunty court
and proved, after making the deed
being involved IN a law suit as security
for the husband of his daughter Eliza
beth, he was heard 70 say if he lost the
suit be Intended one of the slaves Je pay
the debt, and II one was not sufficient
then the other should 60 10 pay il; and
the court, upon this state af facts, held
that no formal manual delivery tn the
grantee l. necessary 10 the validity
Of a deed If, by his conduct and
declarations, the grantor evinccd that
lac considered the act complete when
he Acknowledged it before subscribing
witness, that would be sufficient 10 vest
the title in the d0nee. But the mere fact
that the paper is found sig8ed and wit
messed would not have that eiieoti there
should have been some evidence that the
paper was delivered, or that the granter
intended his signature and aeknoWledg-
ment before witnessing as yesting the
title aud completing all that was necea-