The Fairmont West Virginian. (Fairmont, W. Va.) 1904-1914, 1909-05-12

house and lot IN the city and had Il
conveyed TO him. This last deed d
dsted March "a, 1909 and aclnowl
edged April S, 1909. The deed OF Nc
MILAN to- Trangh was admitted to re
corl February 2, 1903 So that disre
garding all questions Of dispute as tc
when Mcmillan delivered the deed tc
Traugh, 1t Is clear by the statement
as made by Mcmillan. that there was q
period during which he was freehold
er this Is from February 9, 1909 tc
April 5, 1909. when the Nuzum deed
was acknowledged and delivered
During this time he was not eligible
to the Office. When he ceased to be
freeholder he was no longer eligible
TO this Office. The fact that he after.
wards and before he was removed, be.
came eligible did not restore him to
the rights he had forfeited. When he
conveyed all his real estate In the
City and ceased to be a freeholder
therein, he rendered himslf ineligible
to the Office and by no act of his as
by afterwards acquiring real estate
could he restore himself to the of.
flee. Nothing could do this but an ap.
pointment or reelection. Brenty VS..
Willis, % Graf. at page 161-162.
Commonwealth VS.. Sherrard leigh
643. II my views are correct then
clearly the applicant has no right to
be restored to this office according TO
his own statement.
may add that 1t is very question.
able whether or not he ever was eligI-
BILE to hold the Office. The charter
provides, that no person shall be eligl.
BILE TO the office OF Councilman who is
not a freebooter therein. This re.
Quirement is not satisfied by a mere
technical compliance. The deed OF
Traugh to Mcmillan was not bona fide.
1t was, as is admitted for the purpose
Of giving color TO the claim of McMil.
Ian that he was freeholder In the
City OF FairmOnt. Whether so intend.
ed or not 1t was fraud upon the vot-
ers of the ward The citizens of the
City Of Fairmont had an object in re-
qnlring certain officers of the City to
be freeholders therein. The purpose
of this deed, or at any rate its effect
was to evade this requirement. can
not think that Mr.. Mcmillan can es.
tabllsh right TO this office. by work.
Ing a deed which he admits and the
evidence filed with his petition clearly
shows was in its effect fraud. in as
much as It makes 1t appear that he
owns real estate, which in truth he
owned none. Mr.. Mcmillan makes
very frank statement In his answer In
the proceedings before the City COun.
ell. From the statement of Mcmillan,
as well as the eveidence OF Traugh II
that Traugh conveyed McMil.
Ian this property for the purpose Of
making him eligible to the office.
There is no dispute as to this. The
deed was made by Traugh to Mcmillan
Is dated March II, 1908 and acknowl.
edged March 10. 1908 The deed made
by Mcmillan TO Traugh is dated and
acknowledged March 10, 1908, the
same day Traugh's deed was acknowI-
edged 1t us claimed that the deed
made to Traugh by Mcmillan was not
In fact delivered to the possession of
Traugh for some time after its date.
There seems to have been some ar
whereby Mcmillan should
hold the deed or II delivered to
Traugh that he should (with.hold) 1t
from record until Mcmillan should
get another piece of real estate. II is
insisted that this was not a delivery
of the deed so as to pass the title to
Traugh again. Delivery of deed is
necessary but the delivery may be
actual or constructive.
The question whether certain
words or acts constitute delivery is
cne of intention and there is a sufR.
cient delivery, If the parties agree
10 the deed, and It Is signed. sealed
and acknowledged, If the intention be
that the conveyance shall become i'm
operative Delivery does
not necessarily refer to the physical
disposition Of the deed. 1t does not
necessarily involve the manual trans
fer of the instrument. Provided the
intention clearly appears that the
Iced shall take affect, the fact that
the grantor retains actual possession
Of the deed for the grantee by con-.
sent Of the parties does not effect the
Of the delivery. The CONTROL.
Ing element in such cases is the inten.
lion Of the parties. Was the deed
made pursuant TO the agreement of
The parties, regularly signed, sealed
and acknowledged, with no intention
Of revolving 1t, but with the intention
that 1t shall take effect and possession
Of the deed retained temporarily by
the grantor for some reason, salts.
factory to the parties: This is the
test.
The deed made by Mcmillan 10
Traugh was signed, sealed and nc.
knowledged. and executed in pur.
suance to an agreement between the
grantOr and grantee. and the mere
fact that the grantOr held the deed for
q short time. pursuant 10 the arrange.
mont between them does not affect
the validity of the delivery. The
grantOr had completed the deed and
was holding II for the grantee by an
between them, and not.
withstanding Mcmillan may have de.
livered the deed 10 Traugh with an
understanding, that the deed was moi
10 be admitted to record in the County
Clerks Office for a time and Traugh
broke his promise. yet IL this arrange
mpnt was without consideration this
would not affect the legality of the
delivery, and II is not pretended that
either of these deeds was founded