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court of Georgia, in Oliver v. Stone, remark, : “I must say I think Gormans v. Knight somewhat difficult to uphold ;” it forms one of a pretty large class of cases wherein the principle is maintained, that so far as the grantor is concerned, it will be a sufficient act of delivery if, after executing a deed, he place it in the hands of another, out of his own possession and control, if done with an intent that it should take effect as his deed, in favor of the grantee, and the same will become effectual to pass the estate granted, as soon as the same is known and assented to by the grantee. It would be otherwise, if the grantor retain control over the deed as to its delivery, as when he delivers it to a third party to keep and deliver it to the grantee named, unless he should call for it again. The law on this subject is thus stated by Shaw, C. J.: “It is true, that in theory of law, the grantee in a deed poll is held to be a party by accepting the deed. But the deed does not derive its efficacy as a grant and conveyance from the act of the grantee in accepting, but from that of the grantor in executing it. In case of a plain, absolute conveyance without condition, either no special acceptance is necessary to give it effect, or, what is nearly the same thing, the acceptance of the grantee will be presumed. So the delivery of the deed to a third person, unconditionally, for the use of the grantee, gives effect to the deed. From these considerations, it seems to follow that the efficacy of a deed to transfer real estate by deed poll, does not depend upon the legal capacity of the grantee to transfer an estate by deed.” It was, accordingly, held, that a conveyance may be made by deed poll, to an infant, lunatic, or feme covert, although such grantee would be under legal disability to make a conveyance. The foregoing remarks, however, it would seem, are to be taken as

statement of what, in certain cases, would be taken as evidence of assent on the part of the grantee, rather than as doing away with what seems to be a first principle, that no man can be compelled to become a purchaser of land without his knowledge and

i Cin. Wil. &c. R. R. v. Iliff, 13 Ohio, St. 249; Oliver v. Stone, 24 Ga. 63, 70 ; Mallett v. Page, 8 Ind. 364; Guard v. Bradley, 7 Ind. 600 ; Stewart v. Weed, 11 Ind. 92; Butler & Baker's case, 3 Rep. 26 b; Broom, Com. 275; Phillips v. Houston, 5 Jones (Law), 302; Cloud v. Calhoun, 10 Rich. (Eq.), 358, 362; Boody v. Davis, 20 N. H. 140; Mitchell v. Ryan, 3 Ohio, St. 382; Church v. Gilman, 15 Wend. 656.

? Phillips v. Houston, sup. and cases cited. 8. Concord Bank v. Bellis, 10 Cush. 278.


assent. Thus, it is said, “ the act of making, acknowledging, and having the deed recorded, would not be sufficient to transfer the title, for the reason that a contract can only be consummated by the act of two persons, or, in technical language, by the assent of two minds, one agreeing to part with, the other to accept the title.” " It is no answer to this position to say, that when a deed has been properly acknowledged and recorded, a delivery will be presumed, for this presumption, like all presumptions which exist only for the sake of convenience, must yield to facts when established.” 1

29. But although several of the cases seem to sustain the doctrine, that a delivery of a deed to a stranger for the grantee, where it is obviously for his benefit, passes the title at once, as an effectual delivery ; the better opinion seems to be, that no deed can take effect as having been delivered, until such act of delivery has been assented to by the grantee, and he shall have done something equivalent to an actual acceptance of it; and, *moreover, (*581] the act of delivery and acceptance must, from the nature of the case, be mutual and concurrent acts. Proof of an acceptance, at a time subsequent to that of the act of delivery, would not be sufficient to give validity to the deed, unless the act of delivery be a continuing one in its nature, such as leaving a deed on deposit to be accepted by the grantee at his election. Thus, where a father made a deed to his son, and caused the same to be recorded in the registry of deeds, where it lay at the time of the death of his son, who never knew of or assented to such deed, it was held, that it never took effect to pass any title to his son, nor could his heirs claim under it. It is an essential prerequisite, that the instrument in question should be understood by the parties to be completed and ready for delivery, in order to have a mere placing it in the hands or possession of the grantee or his agent construed into a delivery.

1 Bullitt v. Taylor, 34 Miss. 741. See Boardman v. Dean, 34 Penn. St. 252 ; Berkshire M. F. Ins. Co. v. Sturgis, 13 Gray, 177. See Mitchell v. Ryan, 3 Ohio, St. 386, 387; Jackson v. Bodle, 20 Johns. 184 ; Dikes v. Miller, 24 Texas, 417.

? Hulick v. Scovil, 4 Gilm. 177, a very fully considered and ably-reasoned opinion ; Buffum v. Green, 5 N. H. 71 ; Canning v. Pinkham, 1 N. H. 353; Church v. Gilman, 15 Wend. 656, 660 ; Jackson v. Dunlap, 1 Johns. Cas. 114; Lloyd v. Giddings, 7 Ohio, pt. 2, 50; Jackson v. Bodle, 20 Johns. 187; 1 Wood, Conv. 240.

8 Maynard v. Maynard, 10 Mass. 456. See also, Jackson v. Phipps, 12 Johns. 418; Pennel v. Weyant, 2 Harring. 501; Elsey v. Metcalf, 1 Denio, 326; Jones v. Bush, 4 Harring. 1. But see Mitchell v. Ryan, 3 Ohio, St. 377.

Thus, in one case, it was handed by one party to the other to examine and see if it was satisfactory, it being understood that it might be

necessary to alter or correct it. In another, it was handed to the attorney of the other party, accompanied by a declaration by the party executing it, that he was not to be bound until something else was done. And in both these cases it was held not to be a delivery." While, therefore, it is not competent to control a deed by parol evidence, where it has once taken effect by delivery, it is always competent, by such evidence, to show that the deed, though in the grantee's hands, has never been delivered.2

30. Nor will the making and executing a deed in all respects, even to registering the same, be of any validity, unless delivered in the lifetime of the grantor, though, if the recording of the deed is intended as a delivery, and is known to the grantee, and he assents to the same, it will take effect from the time he so assents.3

31. If a deed is found in the grantee's hands, a delivery and acceptance is always presumed.

32. And although where the grantor has parted with all control of the deed, and it is upon its face beneficial to the grantee, an acceptance thereof may be presumed, notwithstanding the *delivery was made to one without any previous author- [*582] ity to receive it, still it would be necessary, in order for this presumption to be entertained, that the person claiming under such a deed should show, affirmatively, if the fact is doubtful, that the grantee was in esse at the time of such delivery made.

1 Graves v. Dudley, 20 N. Y. 76 ; Millership v. Brookes, 5 H. & Nor. 797; Black v. Shreve, 13 N. J. 457. See Parker v. Parker, 1 Gray, 409; Howe v. Dewing, 2 Gray, 476; Worrall v. Munn, 1 Seld. 229. Note and cases collected, Am. ed. 5 H. & Nor. 801 ; Phil. W. & B. R. R. Co. v. Howard, 13 How. 334 ; Bell v. Ingestre, 12 A. & E. N. 8. 317.

2 Black v. Lamb, 1 Beasley (N.J.), 116 ; Roberts v. Jackson, 1 Wen.478; Johnson v. Baker, 4 B. & Ald. 440; Black v. Shreve, 13 N. J. 457, 459.

8 Jackson v. Leek, 12 Wend. 107; Barns v. Hatch, 3 N. H. 304; Denton v. Perry, 5 Vt. 382; Harrison v. Phillips Academy, 12 Mass. 455, 461; Jackson v. Phipps, 12 Johns. 418; Jackson v. Richards, 6 Cow. 617; Elsey v. Metcalf, i Denio, 326; Hedge v. Drew, 12 Pick. 141 ; Powers v. Russell, 13 Pick. 69, 77; Parker v. Hill, 8 Met. 447, that a delivery, after being recorded, is good ; Porter v. Buckingham, 2 Harring. 197 ; Baldwin v. Maultsby, 5 Ired. 505 ; Stilwell v. Hubbard, 20 Wend. 44; Rathbun y. Rathbun, 6 Barb. 98; Oliver v. Stone, 24 Ga. 63; Berkshire M. F. Ins. Co. v. Sturgis, 13 Gray, 177 ; Boardman v. Dean, 34 Penn. St. 252 ; Boody v. Davis, 20 N. H. 140; Shaw v. Hayward, 7 Cush. 174; Mills v. Gore, 20 Pick.'28.

4 Clarke v. Ray, 1 Harr. & J. 319; Ward v. Lewis, 4 Pick. 518; Ward v. Ross, I Stew. (Ala.), 136 ; Canning v. Pinkham, 1 N. H. 353; Cutts v. York Co. 18 Me. 190; Green v. Yarnall, 6 Mo. 326; Houston v. Stanton, 11 Ala. 412; Chandler v. Temple, 4 Cush. 285; Southern Life Ins. Co. v. Cole, 4 Fla. 359. But it is competent to show that it was surreptitiously obtained. Den v. Farlee, 1 N. J. 279; Morris v. Henderson, 37 Miss. 501 ; Adams v. Frye, 3 Met. 109; Williams v. Sullivan, 10 Rich. Eq. 217; Little v. Gibson, 39 N. H. 505; Black v. Shreve, 13 N. J. 459.

33. Where the grantor, after executing the deed ready for delivery, retained it by an agreement with the grantee as security for the payment of the purchase-money, it was held to be neither a delivery nor an acceptance. But where the parties were together, and a deed was duly executed and acknowledged, a declaration by the grantor that he delivered it as his deed, without asserting any right to retain it, was held to be a delivery, although the deed was left where it was executed, and was afterwards found in the grantor's possession. 3

34. Where the deed is delivered to the grantee named, the law presumes it was done with an intent, on the part of the grantor, to make it his effectual deed. But if it is delivered to a stranger, and nothing is said at the time, no such inference is drawn from the act of delivery. But it has been held, that depositing a deed in the post-office, under a direction to the grantee, is tantamount to sending it by a special messenger, and is a delivery. The law bearing upon two or three of the points above stated, is commented upon by the court of Ohio, in a case where the grantor caused his deed to be recorded, and the question was made as to its delivery. They held, that the record of a deed is primâ facie evidence of its delivery, that the delivery of a deed to a stranger for the use of the grantee, may be a sufficient delivery, depending upon the intention with which it was done. If delivered to the grantee himself, no words are necessary, since the law presumes in such case it is for his use. If delivered to a stranger, there is no such presumption, and there must, therefore, be some evidence beyond such delivery, of his intent thereby to part with his title. But no precise form of words is necessary to declare such intent. Any thing that shows that the delivery is for the use of the grantee, is enough. And having it recorded is of this character, so far as to raise a reasonable presumption, unless controlled by other evidence. As a general rule, acceptance by the grantee is necessary to constitute a good delivery, for a man may refuse even a gift. But the assent may be before as well as after the deed made. And where the grant is a pure unqualified gift, the presumption of acceptance can only be rebutted by proof of dissent. “ And it matters not that the grantee never knew of the conveyance, for, as his assent is presumed from its beneficial character, the presumption can be overthrown only by proof that he did not know of and rejected it.” It is upon this ground that a deed to an infant child is sustained. And in that case, the deed was held to pass the title from a father to a daughter, though she died without knowledge of its having been made, in which respect it is opposed to the case of Maynard v. Maynard, cited above.

1 Hulick v. Scovil, 4 Gilm. 190; Bensley v. Atwill, 12 Cal. 231, 236. 2 Jackson v. Dunlap, 1 Johns. Cas. 114.

8 Scrugbam v. Wood, 15 Wend. 545 ; Souverbye v. Arden, 1 Johns. Ch. 253, 255; Stewart v. Weed, 11 Ind. 92.

* Shep. Touch. Prest. ed. 58; Church v. Gilman, 15 Wend. 656; 1 Wood, Conv. 195.

5 M'Kinney v. Rhoades, 5 Watts, 343.

35. The relation of a party to whom the deed is delivered, to the estate and the grantee named, may be such that the law will imply an acceptance sufficient to give effect to the deed. Thus, in one case, where delivery was made to a father for his daughter, his acceptance was held sufficient from his character as her natural guardian.? So where a deed of trust was delivered to the cestui que trust,

who was the beneficiary under the provisions of the deed. 3 [*583] *36. If there are several grantees in a deed, it may be

delivered to one on one day, and to another on another day, and thereby take effect as to all. But a delivery to one does not operate as a delivery to the other, unless so expressed by the grantor.

37. It has been stated, that to give effect to a deed, there must be an assent to it by the grantee, and where it is in his favor, the law inclines to presume such assent; yet if a deed be made to a married

1 Mitchell v. Ryan, 3 Ohio, St. 377; Folk v. Varn, 9 Rich. Eq. 303, Accd't. See Maynard v. Maynard, 10 Mass. 456 ; ante, p. *581, pl. 29, and cases cited ; Wall v. Wall, 30 Miss. 91, acceptance presumed from the beneficial character of the grant, though unknown to the grantee.

2 Bryan v. Wash, 2 Gilm. 557.

8 Souverbye v. Arden, 1 Johns. Ch. 240; Jaques v. Methodist Church, 17 Johns. 577 ; 8. c. 1 Johns. Ch. 456 ; Cloud v. Calhoun, 10 Rich. Eq. 362; Morrison v. Kelly, 22 III. 612. 4 I Wood, Conv. 195.

5 Hannah v. Swarner, 8 Watts, 9.

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