
    Green & Yarnall adm’rs. of Yarnall dec’d v. Yarnall.
    A deed only takes effect from its delivery : but the possession of the deed by the grantee, is presumptive evidence of a delivery,
    2. In a doubtful state of facts, the acijui jscence of in -adverse claimant is entitled to great weight; but, otherwise where the facts aie well established, and the parties seem to have been in a state of igno'rance as te law.
    ■Error to the circuit court of St. Charles county.
    
      Bird for Plaintiff.
    
    1. The plaintiff -here 'insist; that the court erred in instructing ■ the jury on the evidence before then, that said kieed‘-passed no title 'to plaintiff, and the covenants in it did mot dtop the 'defendant from maintaining his action.
    "2 The court also erred in rejecting the evidence offered "by'defendant below. Revised Code of Missouri page 745, -sections SI, -32, 33.
    
      Gamble far Defendant.
    
    1. Thatthe-paper offered as a'deed of gift was rightly rejected. -2 Kent-354. Revised Code of Mo. 4825,.page 745, -«ec. 31.
    2. That the instruction given by the-court was certainly •npt wrong; and 1 ask how this court can say that tin; evi-<deaee offered was of any -sort of relevancy-on, the trial-of •the issue.
   Opinion'of tke’ court delivered' by

Tompkins Judge.

■The administra tors-of - John Yarnall'brought their aetion of detinue against -John Yarnall, the plaintiff in error, •'in tbe-circuit court of St. Charles county, and having-obtained a judgment in that court, John Yarnall comes irito \th¡s-court, oivhis writ of -error,to reverse.the judgment -of the circuit court.

•Orff he1 trial of the-canse the defendant offered in evidenee a deed, in these words, viz: “Know all men by these pre-■•senfs ■that,! John Yarnall mf -&c., do-give, grant, bargain and sell unto my son-John Yarnall,'a certain 'tract, or parcel of iand, lying and situate in the county of St. Chai íes, &c.,and I do furthermore give, grant, bargain and sell, unto my son John, all my negroes as follows, Jack, Tom, Sam, &c., toíhlm, and for his use, his heirs, executors and administrators prever. And I do, by these presents, bind myself, my heirs, executors and administrators-,, to- warrant amide-fend the above described y remises and n&gpoe-s, to my son John, and his heirs, executors and administrator» &c.” This deed was dated the 21ft day of November, in the year 1830, and recorded on 6th Augu, t 1831

a subscribing The plaintiff then- y reduced Philo Gillet. witness to the said deed, \i ho testified that he wrote the deed1, tinder the, direction of the deceased, and subscribed it as a witness at his request; that John Yamal], the defendant in the circuit court and ylaintiff in error, was then under age« and was not present when the deed was’drawn; that ihe deceased said, he should keep possession qf the deed- and the property until his death, and he knew of no delivery. The defendant then produced Robert Samuels as a witness, who testified, that a short time before the death-of the maker of the deed, he, the wiiness, had a conversation with him, and advised him to give one of Isis negroes to his son in law For-man ; that the deceased replied, that the negro was not his, he had given all his negrees, and the land where he lived, to his son John at his own death, and made him a deed therefor; he staled that John was a cripple; and lie had enough propel ty left to give his other children a start. The court decided that this deed could not be read to the jury, that it did not pass the property to the donee, and that the covenants of warranty in said deed, did not estop the administrators from maintaining their action. To this oyinion the defendant excepted. The defendant then pioved, that he remained a minor on the land, in the deed mentioned, until after the death cf his hither; that he took possession of the said negroes immediately after the death of his father; that one of the administrators of the deceased had, since the death of John Yarnall, hired some of the negroes from the defendant; that the widow of the deceased contracted with the defendant as the owner of said negroes; that the admja-inisfrators liad settled their accounts, and that more than three years had expired since they had taken out letters of administration; that all the debts had been paid, and that a balance due the estate had been distributed equally tp the thirteen other children of the deceased, excluding the defendant from any share in the' distribution. This evidence' was excluded by the court. The defendant then offered in. evidence the inventory of the estate of the deceased, to show the administrators had not considered the slaves as a part of the property of the deceased. This also the court decided to be no evidence against the claim of the administrator's.

A deed on-)y talcos efiect fro:¿\ its deliv-cry: but the inT grantee, * P y' tiv:' evidence of a delivery.

At the close of the bill of exceptions are found these words: “Philo Gillet testified, in addition to what is above stated, ‘that he had heard a sister of the defendant say that, a short ‘time before the death of her father, the defendant was ‘attending him one day when the father’ fell asleep; ‘that the defendant left the room; when he awoke-‘lie called for the defendant, who came; that the father said rio John, have I not done enough for you to induce you to ‘attend to me ? I have made you a deed for the land and all ‘the negroes; gave him the key of his bureau, and told John ‘to go and get the deed and read it; the sister said whether ‘John went and got the deed, or not, she did not take notice. ”

There is no evidence of the delivery of this deed to the defendant, by the father.» The testimony of both the witnesses shows that the deceased never intended, when he . . . , ... . , . _ . » made the deed, to deliver either the deed or the negroes, m-^le Possessi°n °f his son in his life time, and a deed not delivered can not certainly pass any thing.

The witness introduced by the defendant himself testifies, that the deceased, in disclaiming any property in these ne-groes, stated that he had given the negroes and land to John at his death, and had made a deed. It is useless to enquire what might have been the intention of the deceased apart from the legal effect of this deed. We cannot resort to testimony to give any signification to the language of the deed, other than what the words themselves and the character of the instrument import. Even the hearsay evidence, of what the sister of the plaintiff in error said, amounts to nothing more than a permission to take the deed and read it, in order that he might know its contents. In general, it is pre-Burned that a deed is delivered when it is found in the possession of the person to whom it is made. But here enough has been proved to make it the duty of John Yarnall, plaintiff in error, to show that 'this deed was delivered.

l" facts, the uc-a^adversc cla{“1a^ is great weight; ot*lor' the facts arc edfand"the'11 parties ^ seem jn a state <>f ignorance as to the law:

But even if a delivery were proved, still the statute law intervenes and declares, that no gift of any slaves shall be good, or sufficient to pass any estate in such slaves, unless the same shall be by will duly proved and recorded, or by deed in writing to be proved by two witnesses at least, and acknowledged by the donor, and recorded in the district, {circuit] court, [in the county] where one of the parties live, within eight months after the date of such deed, or ■writing, 'Or unless possession be delivered of such slaves.— See sections 31 and 32 of a law respecting slaves page 745 of the digest of 1825.

This deed was made on the first day of November 1830, and not recorded till the 6th day of August 1831.

The circuit court then, in my opinion, committed no error in excluding all this evidence from the jury. But, for the defendant, it is contended that the acquiescence of the administrators, and of the widow, for so long a time, in his right, ought to avail him something. In a doubtful state facts the acquiescence of an adverse claimant ought to weigh much. But the facts are well established, and the parlies seem to have been in a state of ignorance as to the law. It would be moreover unjust if fhe acquiescence of the administrators, and the widow, should be construed to the dice of the claims of the children of the deceased.

For the reasons above given, the judgment of the circuit court ought in my opinion to be affirmed.

McGirk Judge not prepared to concur in the foregoing opinion.  