THOMAS v. DREYSPRING

167 So. 262 THOMAS v. DREYSPRING. 3 Div. 171. Supreme Court of Alabama. April 9, 1936. J. R. Thomas, of Montgomery, for appellant. Rushton, Crenshaw & Rushton, of Montgomery, for appellee. [MAJORITY — ANDERSON, Chief Justice.] ANDERSON, Chief Justice. Bill to quiet title. The sole question in this case involves the delivery of the trust deed exhibited to the bill of complaint. It is, of course, well settled that if a deed was never delivered to the grantee, it will not operate as a conveyance. Loring v. Grummon, 176 Ala. 236, 57 So. 818; Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 607, 53 So. 812. The true test of delivery is whether or not the grantor intended to reserve to himself the locus poenitentise. Griswold v. Griswold, 148 Ala. 239, 241, 42 So. 554, 121 Am.St.Rep. 64; Powell v. Powell, 217 Ala. 287, 116 So. 139. The only evidence in this case negatives a delivery actual or constructive of the trust deed in question, and the decree of the circuit court is affirmed. Affirmed. GARDNER, BOULDIN, and FOSTER, JJ., concur.