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15. The character of the power under which a deed may be executed by an agent for another, depends upon the circumstance whether the act of signing is done in the presence or absence of the principal. If done in his presence, an oral direction to do the act will be sufficient, it being theoretically the act of the principal himself.1 But if the act is to be done in the absence of the principal, it must be given by an *instrument under the hand [*576] and seal of the principal, and in many of the States, the instrument must be acknowledged and recorded like the deed itself.3

16. It is customary in England, to indorse upon the deed, a receipt or certificate of payment of the consideration-money, although this is commonly acknowledged in the premises of the deed, and this certificate is attested by witnesses. But this practice does not seem to have been adopted in this country.

17. It may be necessary, in order to make a valid deed, if the party to its execution is unable to read it, and requires this to be done, to read it to him as it is written. But if the party can read, it is not open to him, after executing it, to insist that the terms of the deed were different from what he supposed them to be, when he signed it. Nor could one who is unable to read, be admitted to object that he was misled in signing a deed, unless he had requested to hear it read, and this had not been done, or a false reading had been made to him, or its contents falsely stated.5

1 Ball v. Dunsterville, 4 T. R. 313; Gardner v. Gardner, 5 Cush. 483; Wood v. Goodridge, 6 Cush. 117, 121; King v. Longnor, 4 B. & Ad. 647; Shep. Touch. 57 ; Frost v. Deering, 21 Me. 156, where the husband signed the wife's name in her presence and by her direction, which was held sufficient. Burns v. Lynde, 6 Allen, 309, 310.

* Shep. Touch. 57; Plummer v. Russel, 2 Bibb, 17; Montgomery v. Dorion, 6 N. H. 250 ; Walk. Am. Law, 365 ; Stetson v. Patten, 2 Me. 358. Nor will a subsequent parol adoption of the act make it valid. Smith v. Dickenson, 6 Humph. 261; Tappan v. Redfield, 1 Halst. Ch. 399; Rhode v. Louthain, 8 Blackf. 413.

8 Montgomery v. Dorion, 6 N. H. 250. But the deed will be good against the grantor and his heirs, and create a good title against strangers, though the power is not registered. Mass. Gen. Stat. ch. 89, 29; Walk. Am. Law, 365. Acknowledging and recording not necessary in Georgia or Indiana. Doe v. Blacker, 27 Ga. 418; Moore v. Pendleton, 16 Ind. 481. But see Butterfield v. Beall, 3 Ind. 203.

41 Wood, Conv. 239.

51 Wood, Copv. 237 ; Shep. Touch. 56.; Manser's case, 2 Rep. 3; Henry Pigot's case, 11 Rep. 27 b; Jackson v. Croy, 12 Johns. 429; Hallenback v. Dewitt, 2 Johns.

Jackson v. Hayner, 12 Johns. 469; Taylor v. King, 6 Munf. 358; Com. Dig. Fait, B. 2; Souverbye v. Arden, 1 Johns. Ch. 252; Withington v. Warren, 10 Met. 434. VOL. II.



18. A grantor is presumed to have known the contents of the deed he has executed, unless the contrary be affirmatively shown.' And one who executes a deed, cannot avoid it on the ground of ignorance of its legal effect.?

19. There is usually a date inserted in the deed, as indicating the time when the same was executed and delivered. In indentures, this

is commonly at the beginning of the instrument, but in single [*577] deeds, or deeds poll, it is generally inserted *at the close.

But though a presumption would arise that the deed was delivered and took effect on the day of its date, if there was nothing offered in evidence to control this, it is always competent to show that the date inserted was not the true date of its delivery. Besides, it is immaterial whether a deed has any date or not, nor would it be affected though the date was an impossible one, like the thirtieth of February. Dates have, however, been in general use since Edward II. and Edward III.3

20. Passing over, for the present, the provisions in most of the States for acknowledging deeds before certain prescribed officers, it remains to speak of that ceremony indispensable to their validity, though all the other requisites have been complied with, namely, delivery. In this respect all courts and writers agree. But in applying the doctrine, they are not uniform in defining what constitutes such a delivery. That a delivery is essential to give effect to a deed, authorities might be multiplied indefinitely. Those cited below will be sufficient.4

21. And if once delivered, it cannot, if valid, be defeated by any subsequent act, unless it be by virtue of some condition contained in the deed itself.5

1 Kimball v. Eaton, 8 N. H. 391.

1 Wood, Conv. 238 ; 2 Rep. 3. 8 Co. Lit. 6 a ; Perkins, \ 145; Goddard's case, 2 Rep. 4 b; Com. Dig. Fait. B. 3; Shep. Touch. 52, 55, 58 ; Jackson v. Schoonmaker, 2 Johns. 234; Colquhoun v. Atkinson, 6 Munf. 550 ; Lee v. Mass. Ins. Co. 6 Mass. 208, 219; M'Kinney v. Rhoades, 5 Watts, 343; M'Connell v. Brown, Litt. Sel. Cas. 459; 1 Wood, Conv. 195 ; Geiss v. Odenheimer, 4 Yeates, 278; Osbourn v. Rider, Cro. Jac. 135; Thompson v. Thompson, 9 Ind. 333 ; Genter v. Morrison, 31 Barb. 155; Banning v. Edes, 6 Minn. 402.

4 1 Wood, Conv. 193; Shep. Touch. 57; Co. Lit. 35 b; Goddard's case, 2 Rep. 4 b; Com. Dig. Fait, A. 3; Hulick v. Scovil, 4 Gilm. 175; Church v. Gilman, 15 Wend. 656, 658; Fairbanks v. Metcalf, 8 Mass. 230, 239; Stiles v. Brown, 16 Vt. 563; Fletcher v. Mansur, 5 Ind. 267.

6 Hawksland v. Gatchel, Cro. Eliz. 835; Com. Dig. Fait, A. 36. See 1 Wood, Conv. 194; Younge v. Moore, 1 Strobh. 48.

22. Regularly, therefore, there can be but one delivery of the same deed, for if the first is effectual, the second cannot be of any avail. This principle is applicable in cases where infants, femes corert, and the like, have undertaken to give validity to a deed which has once been delivered, by delivering it a second time. And the result is, that where it is merely *voidable, as in [*578] the case of an infant, or person of nonsane memory, a second delivery after his disability has been removed, would be simply void. Whereas, a delivery by a feme covert being void, if she makes a second one on becoming discovert, it will be good, and give effect to her deed. Where husband and wife joined in a deed of wife's land, but the deed was not delivered until after her death, though the deed thereby passed the interest of the husband, it did not that of the wife, since the deed never took effect in her life time.?

23. A deed takes effect from its delivery, irrespective of its date, though primâ facie, the date is to be taken as the time of delivery.3

24. But, to have the effect of a delivery, the deed must first have been executed completely; no delivery before that can give force to the deed.4

25. In undertaking to define what will constitute a delivery of a deed, it is said that it may either be “ actual, that is, by doing something and saying nothing, or verbal, that is, by saying something and doing nothing, or it may be by both.” But it must be by something answering to the one or the other, or both these, and with an intent thereby to give effect to the deed. Among the illustrations given, of what would amount to a delivery by the mode above stated, is that of a deed lying upon a table in presence of the parties, and the grantor tells the grantee to take it, and he does so. Here the delivery takes place by words alone, on the part of the maker. If, on the other hand, the grantor throws the deed upon the table, intending the other party to take it, and he does so, it will be a delivery,

11 Wood, Conv. 196; Com. Dig. Fait, B. 5; Shep. Touch. Prest. ed. 60 and note; Rolle, Abr. Fait, N. 1; Verplank v. Sterry, 12 Johns. 536, 548; Mills v. Gore, 20 Pick. 28, 36; Perkins, § 154.

2 Shoenberger v. Zook, 34 Penn. St. 24.

8 Harrison v. Phillips Academy, 12 Mass. 455, 460; Jackson v. Bard, 4 Johns. 230; Geiss v. Odenheimer, 4 Yeates, 278; 1 Wood, Conv. 195; Goddard's case, 2 Rep. 4 b; Shep. Touch. 58, 72; Colquhoun v. Atkinson, 6 Munf. 515; M'Connell v. Brown, Lit. Sel. Cas. 462 ; Com. Dig. Fait, G.; Cutts v. York Co., 18 Me. 190. But see Elsey v. Metcalf, i Denio, 323.

4 1 Wood, Conv. 194 ; Shep. Touch. 58; M'Kee v. Hicks, 2 Dev. 379.

6 Com. Dig. Fait, A. 3, A. 4 ; Shep. Touch. Prest. ed. 58, n.; 1 Wood, Conv. 193; Co. Lit. Day's ed. 36 a, and note, 223; 2 Rolle, Abr. Fait, K.; Verplank v. Sterry, 12 Johns. 536; Mills v. Gore, 20 Pick. 28, 36; Hughes v. Easten, 4 J. J. Marsh. 572; Methodist Church v. Jaques, 1 Johns. Ch. 450 ; Dearmond v. Dearmond, 10 Ind. 191.

though nothing is said. If, however, the deed is laid upon the [*579} table without any such intention, and the grantee *takes it


it will not amount to a delivery. If, therefore, one to whom a deed is made, gets possession of it, without something answering to a delivery on the part of the maker, it will not avail him nor affect the title of the maker. Thus where the grantee, after the formal execution of the deed by the grantor, took the same in the grantor's presence, without any objection on his part, it was held to be a good delivery.3.

26. Ordinarily, nothing further is required to constitute a delivery of a deed, on the part of a corporation, than that their common seal should be put to it by the consent of the corporation, unless, when executing it, they appoint an attorney to deliver it. In that case it does not become their deed until its formal delivery. A delivery of a deed to the authorized agent of a corporation, is a delivery to the corporation.

27. There is, commonly, much less difficulty in determining whether, in any given case, there has been a delivery of a deed where the transaction is directly between the parties to the instrument, than where it is delivered through the agency of third persons; for the delivery may be made by or through other persons than the immediate parties to the same. And a delivery may be made good by a subsequent assent, though originally invalid for want of it, upon the principle — omnis ratihabitio mandato æquiparatur. 6

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i Com. Dig. Fait, A. 3; Mills v. Gore, 20 Pick. 28, 36; Chamberlain v. Staunton, i Leon. 140; 1 Wood, Conv. 193, 195 ; Methodist Church v. Jaques, 1 Johns. Ch. 456; Shep. Touch. 58; Thoroughgood's case, 9 Rep. 136; Co. Lit. 36 a, 49 b.

2 1 Wood, Conv. 193; Cutts v. York Co. 18 Me. 190; Black v. Lamb, 1 Beasley (N. J.), 108, 116 ; Roberts v. Jackson, 1 Wend. 478; Hadlock v. Hadlock, 22 III. 388.

8 Williams v. Sullivan, 10 Rich. Eq. 217 ; Stewart v. Weed, 11 Ind. 94.

+ 1 Wood, Conv. 194; Co. Lit. 36, n., 22, n.; Willis v. Jermine, 2 Leon. 97; 8. C. Cro. Eliz. 167; Com. Dig. Fait, A. 3; 2 Rolle, Abr. Fait, I.

6 Western R. R. v. Babcock, 6 Met. 356.

& Wood, Conv. 193 ; Turner v. Whidden, 22 Me. 121 ; Shirley v. Ayres, 14 Ohio, 307.

28. Thus, a deed may be delivered to the grantee himself, or it may be delivered to a stranger unknown to the person for whose benefit it is made, if so intended by the maker, and this may be an effectual delivery, the moment it is assented to by the grantee, even though the grantor may in the mean time have deceased. Thus, in Hatch v. Hatch, and Foster v. Mansfield,2 *a father [*580] made a deed to his son, and placed it in a stranger's hands to be delivered to the grantee on the grantor's death. It remained there until the death of the latter, and was then delivered to the grantee, and was held to be a good deed, although the original delivery was not regarded as that of an escrow by the grantor. The case of Belden v. Carter involved the same principle, and the case of Doe v. Knight furnishes, perhaps, a still stronger illustration 3 of this doctrine. There, one Wynne, being indebted to Gormans, made and executed a mortgage to him in his absence and without his knowledge, in the presence of his niece who witnessed it, and to whom he declared that he delivered it. He afterwards had the deed in his possession, wrapped in an envelope, and handed the envelope to his sister, telling her to keep it, and that it belonged to Gormans. After that he took it again, and, at a subsequent time, handed it again to her, saying, “ put this by.” The matter stood thus until Wynne died, when the sister handed the parcel to a friend of Gormans, through, whom he received it. Wynne, in his lifetime, had assured Gormans that he would secure him for his indebtedness. The judge, who tried the case, instructed the jury that if Wynne retained the control of the deed, there was no delivery ; but that if he parted with it, and for the benefit of Gormans, in order that it should be delivered to him in Wynne's lifetime, or after his death, it would be a good delivery, which ruling the court of King's Bench held to be correct, and the verdict in favor of the validity of the deed was sustained. Although, in referring to the case cited, the

11 Wood, Conv. 193; Com. Dig. Fait, A. 3; Hatch v. Hatch, 9 Mass. 307 ; Hulick v. Scovil, 4 Gilm. 176; Buffum v. Green, 5 N. H. 71 ; Belden v. Carter, 4 Day, 66; Ruggles v. Lawson, 13 Johns. 285 ; Wheelwright 2. Wheelwright, 2 Mass. 447, 452; Doe v. Knight, 5 B. & C. 671; O'Kelly v. O'Kelly, 8 Met. 436; Foster v. Mansfield, 3 Met. 412; Wesson v. Stevens, 2 Ired. Eq. 557 ; Morrison v. Kelly, 22 III. 626; Marsh v. Austin, 1 Allen, 238.

2 Hatch v. Hatch, 9 Mass. 307; Foster v. Mansfield, 3 Met. 412; O'Kelly v. O'Kelly, 8 Met. 439. 3 Belden v. Carter, 4 Day, 66 ; Doe v. Knight, 5 B. & C. 671.


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