CHAPTER XIX .

DELIVERY

$ 296 . Delivery essential to a deed $ 304 . Presumption of delivery and to the transfer of title . Recording . 297 . Exception to rule that de- 305 . Postponing complete deliv livery is essential. ery till death of grantor . 306 . of 298 . Elements of delivery - Sur Effect grantor ' s retention

render of control by the of possession and control

grantor. of the deed . . 299. Elements – The intent of 307 Effect of grantor ' s deposit

the grantor. ing deed with a third per Acceptance presumed 300 . until son : reserving no control . . dissent is shown . 308 Effect of reserving control by . 301 . Acceptance by the grantee . grantor in such cases

302 . If acceptance is prevented 309 . Delivery in escrow .

there is generally no de- 310 . Effect of grantee ' s obtain livery . ing possession of escrow

. Presumption of 303 delivery wrongfully . . from certain facts 311 . Effect of surrender or de

struction of a deed .

§ 296 . Delivery essential to a deed and to the transfer

of title . — Always prominent in every definition or descrip

tion - ancient or modern - of a deed is the idea of deliv

ery . Assuming that the instrument is complete in sub , stance and that all formalities which may be regarded as , representing sealing at common law are complied with , the instrument is not in a legal sense a deed does not , ,

meaning of fulfill the its old name factum a thing done

until it is delivered . The purpose of making the instru , ment has been to transfer title and while popularly we

may properly apply the term deed to the written instru , ment and while in legal discussions we must often refer , , , to this paper as a “ deed ” yet strictly speaking there is

( 360 ) § 297 DELIVERY . 361 no deed until the sealed writing is delivered . As on de livery of the conveyance the grantor is divested of title and the grantee is invested with it ; as the former has, after delivery , no title in the property described in the deed which he may dispose of, or which may be taken by his creditors , or which will descend to his heirs ; while the latter has title which cannot - generally speaking be lost by a destruction or surrender of the deed , it is im portant in each case to determine whether there has been

a delivery , and, further , at what time the delivery was complete ,

That the subject is worthy of attention and is not free from difficulties , is demonstrated by the frequency of suits in which the chief, and often the only , question is as to delivery . The cause of difficulties in determining whether there has been a delivery is that it is not always accom plished by the simple manual transfer of the instrument from the grantor directly to the grantee , but may be ac

complished in a great variety ofways — sometimes without a direct manual transfer between the parties , and sometimes

without an actual transfer of the instrument at all . It is , largely a matter of intention which is to be ascertained

from all the various circumstances of each case .

$ 297 . Exception to rule that delivery is essential . — To

the general rule that delivery of the conveyance is neces , sary to a transfer of title there is an exception which may , be noted at the outset namely : that conveyances by the

government may transfer title without delivery of the

patent or deed .

When a patent of government lands has been executed , and recorded in the land office it has become a solemn

act of the government . Title to the land passes to the by grantee the record . The reason for the difference in

this respect between public and private grants is indi , a by in cated the supreme court of the United States 362 THE LAW OF CONVEYANCING . § 298

case 1 where one contention was that a patent purporting

to convey land of the United States was not effectual for , that purpose for want of delivery but the court distin

guishes the public grant from the private grant , say

ing : “ The importance attached to the delivery of

the deed in modern conveyances arises largely from the

fact that the deed has taken the place of the ancient , , livery of seisin in feudal times when in order to give

effect to the enfeoffment of the new tenant the act of de

livering possession in a public and notorious manner

was the essential evidence of the investiture of the title ; to the land ' and then mentions the symbolical acts , which took the place of the livery of seisin followed later , by the delivery of the deed and shows that in transfers , of title by matter of record whether the record was a , , judgment or decree of a court as a fine or a recovery or , the record made of the king ' s grant neither livery of , seisin was necessary nor a delivery of the document

sealed with the king ' s seal . ? by § 298 . Elements of delivery - Surrender of control , , the grantor . - Delivery is however as essential to the deed

of a private person as livery of seisin ever was under the

older law to transfer title . , Delivery practically signifies according to many mod

ern authorities , not merely the act evidencing the inten

tion of the grantor alone in liberating the instrument from ,

his control . According to them there must be to effect ,

a complete delivery an acceptance by the grantee of the , ; instrument into his control therefore the conception of

the term " delivery ” embraces two distinct ideas : surren , by by der one and acceptance the other .

While it will appears that the authorities are not en . , , . U . S . v . 1 United States Schurz 102 378 398 , ; ? , v . Sapp Ill .

See Leroy v . also Gilmore 100 297 Jamison 3 Sawyer , ; , , , ; v . 95 .

369 390 30 Alvarado Nordholdt 1892 Cal 116 128 Pac . 211 . , , * $ $ See 300 301 post . § 298 DELIVERY . 363

tirely in accord as to the necessity of acceptance as an

element of delivery , all agree that the first essential of a

valid delivery is that the grantor surrender control of the

deed with intent that the grantee shall take title under it . Surrender does not necessarily and always mean the , ; up actual physical giving of possession of the instrument

hence it is not always the case that a deed retained in the

grantor ' s hands is invalid for want of delivery . There , , may be such attendant circumstances as for example ,

relationship of grantor to grantee or other acts of the , grantor besides the mere signing and sealing of the deed , as to show that the title is beyond his control though the

deed is retained in his possession . , , For example in a case the question was as to the

ownership of real property which had been insured , and had burned and the settlement of this question

depended upon whether there had been delivery of a , ,

deed from husband to wife . The husband the grantor , did not give the deed to his wife but after recording it

kept it in his possession . It was decided that there was ; enough evidence to warrant the jury ' s finding of delivery

the court observing that “ manual delivery is not always

necessary . "

This would especially be so in case of a conveyance , from husband to wife where the husband is the custodian , by of the wife ' s papers and manager of her property either , arrangement between them in the particular case or by , the general policy of the law of the place . So in the

very common case of a parent ' s making a conveyance of , land to his children and retaining possession of the deed

it is usually held that there has been a sufficient surren , der of the deed by the parent though there may have

been no permanent transfer of possession of the deed . 6 ; , , W . . . 49 N . Co . 87 v . * Glaze Insurance 1891 Mich 349 595 , ; , 5 v . 56 v . 32 Brown Brown 61 Texas Ruckman Ruckman N . J . Eq . ,

259 261 . , ; , , ;

6 Reed v . Douthit 62 I11 . 348 Valter v . Blavka 1902 195 Ill . 610 63 364 THE LAW OF CONVEYANCING . § 299

Nor is relationship between the parties necessary in all

cases for the application of this principle . In a Massa

chusetts case ? the deed purported to convey to a town a lot

on condition that a library building be erected on it . The , by deed had been recorded but appears to have been kept the grantor , and after his death was found among his ef , fects and there was no evidence of its surrender to the

town authorities : but the town had erected the building .

It was held there was evidence of delivery which was not overcome by the facts that the deed was kept by the gran

tor and that the town authorities had no knowledge of its

actual delivery . 8

$ 299 . Elements — The intent of the grantor . This

surrender of control must be with the intent that the

grantee is to take title . Hence the mere placing of the

instrument in the hands of the person named as grantee

is not necessarily such surrender as will constitute the

first essential of delivery .

In Wisconsin ' it was argued that as the deed was by handed the grantor to the grantee there was a full and complete delivery , and that evidence was not admis

sible to show the actual condition then existing . The

court says : “ No doubt a great deal of discussion and un

necessary refinement may be found in the books bearing ; on this question but the main principle must predomi , , , nate that to constitute a valid delivery of the deed the

grantor must part with his dominion over it with intent

to pass the title . ” And as here the deed was handed to

the grantee for the purpose of examination and inspec , ; ; ; N . E . 499 Colee v . Colee 122 Ind . 109 23 N . E . 687 17 Am . St . R . , , ; ; ; 315 Reed v . Smith 1899 125 Cal . 491 58 Pac . 139 Bunnell v . Bun , , ; 23

Ky . R . S . W . nell 1901 Law 800 64 420 . , Snow v . Orleans 126 Mass . 453 . , ; ,

8 See also Wallace v . Berdell 97 N . Y . 13 Scrugham v . Wood 15

Wend . 545 . , , ; ; 9 Curry v . Colburn 1898 99 Wis . 319 74 N . W . 778 67 Am . St . Rep .

860 . $ 299 DELIVERY 365

tion , and that he might take it to his counsel for such , examination there was no delivery . 10 by And the execution and recording of a deed a hus by band to his wife may be shown him to have been done , without intent on his part to convey title but simply to

relieve his wife ' s insane anxiety and fear of destitution . 11 , As the intent of the grantor is of such importance a

transferring of the deed from the grantor ' s possession to , , that of the grantee without the former ' s consent conveys ; no title such a deed has been said to be of no more ef

fect than if it were a forgery . 12 And if a stolen deed has , been recorded or is otherwise a cloud on the title of a , grantor it may be canceled upon his bringing suit for

that purpose . 13 , This intent being of such vital importance it is fre

quently said that the intention of the grantor is " the

controlling element . " ' 14 But a mere intent on the part of

the grantor not evidenced by some act which the law

deems sufficient to show that he parted with control is , not enough because the first actual step in making deliv , , ery is lacking that is surrender or the relinquishment

of control . This principle is applied chiefly in those nu

merous cases where a grantor evidently intends his con , veyance to take effect as a deed after his death yet does , , ; ; 10 See S . P . - Chick v . Sisson 1893 95 Mich . 412 54 N . W . 895 Hol , , , ; ; v . . 57 N . E . 36 lenbeck Hollenbeck 1900 185 Ill 101 103 Kenney v . ; , , . . 70 Parks 1902 137 Cal . 527 Pac 556 , , ; 11 McCartney v . McCartney 1900 93 Texas 359 55 S . W . 310 . , , , ; , 13 v . U . S . v . Felix Patrick 1892 145 317 329 Fitzgerald Goff 99 ,

Ind . 28 40 . , , ; 13 Maratta v . Anderson 1898 172 Ill . 377 50 N . E . 103 . In Meeks v . , , ; , 54 St . 44 N . E . Stillwell 1896 Ohio 541 267 husband and wife were in ; possession of a homestead the title to which was in the wife they ,

joined in a of gift of deed but with the intention not delivering it un , , til after the death of both . The wife however during the lifetime of knowledge her husband attempted to deliver the deed without his and , consent and it was held that his right in the homestead could not be

affected by the deed . , ; , , , g E . . . 87 90 53 N . Ill v . " E . . Leavitt Leavitt 1899 179 551 366 THE LAW OF CONVEYANCINGCING .. § 300

not in all cases completely surrender control of it : a mat

ter to be discussed presently. 15

Acceptance presumed $ 300 . until dissent is shown . The question as to whether or not there must be an accept

ance by the grantee in order that there may be a trans mission of title involves difficulties .

It seems true that “ the law certainly is not so absurd , as to force a man to take an estate against his will ” 16 he , , cannot therefore be compelled to accept a conveyance . On , , , the other hand experience has shown that as a rule men

do not decline to accept an ordinary conveyance which

gives title to property . , , If then a grantor executes a conveyance without the , knowledge of the nominal grantee and puts the convey , ance out of his control has the title to the property de

scribed passed from the grantor ? May the grantee then , ,

decline to accept the conveyance and if so does the title

pass back to the grantor ? Who has the title in the mean , time — that is after the grantor has surrendered all con

trol of the conveyance and before the nominal grantee

has declined to accept it ? If during this interval third

persons acquire apparent interests in the property for , example creditors of either party to the deed — what be

comes of these apparent interests ? by It seems to have been established English decisions

that : ( a ) a conveyance of real property will be presumed , by to have been accepted the person named as grantee

even though he was ignorant of the fact of the convey , ; ance but that ( b ) the nominal grantee may on learning , of the conveyance decline to accept it . The grantee ' s ; dissent was called a “ disclaimer " and at one time a deed

seems to have been necessary to make the disclaimer , by effectual but modern decisions there may be a valid , , . $ $ 15 See post 306 307 , , , , 16 Abbott C . J . in Townson v . Tickell 3 Barn . & Ald . 31 36 . § 301 DELIVERY . 367 disclaimer by conduct alone. 17 The matter was discussed

in Butler and Baker 's Case ,18 where it is said : “ If A make an obligation to B and deliver it to C , to the use of

B , this is the deed of A presently . But if C offer it to B ,

then B may refuse it in pais, and thereby the obligation

will lose its force . " And see the later cases of Smith v .

Wheeler19 and Thompson v . Leach . 20 The argument of , Justice Ventris in the latter case which argument he by says was adopted the house of lords in finally deciding , to

21 appears the case on appeal have been the chief

authority for later decisions .

It hasaccordingly been held in many cases that when

the grantor has parted with control of the deed the deliv by

grantee be no ery is complete and acceptance the need , , shown nor even his knowledge of the deed for its ac by ceptance him will be conclusively presumed until his . 22 express dissent is shown , $ 301 . Acceptance by the grantee . On the other hand by it is held that there must be acceptance the grantee to

complete “ delivery . " . ,

In a Massachusetts case 23 a charge that " If after sign , , ing the deed the grantor placed it upon the table or placed

it in M ' s hands with the intention that it should become , effective and operative then there was a good delivery of , ; ,

17 See Stacey v . Elph 1 My . & K . 195 Birchall v . Ashton 40 Ch . D . ,

437 439 . , 18 Butler and Baker ' s Case 3 Co . Rep . 26 ( 1591 ) . , , 19 v . 1 ( Smith Wheeler Ventris 128 1671 ) . , , 29 Thompson v . Leach 2 Ventris 198 ( 1690 ) . , 21 Thompson v . Leach 2 Ventris 208 . , , , ; ; 22 Robbins v . Rascoe 1897 120 N . C . 79 26 S . E 807 58 Am . St . R . ; , ; , 774 Mitchell ' s Lessee v . Ryan 3 Ohio St . 377 Jones v . Swayze 42 N . ; , , , ; J . L . v .

Guggenheimer 39 W . . 279 Lockridge 1894 Va 457 461 19 S .

E . 874 . The theory that title can pass from the nominal grantor with or

knowledge of grantee is out the consent the nominal assailed in an , , , by interesting and forcible opinion Dixon C . J . in Welch v . Sackett

12 Wis . 270 . , , ; 23 Meigs v . Dexter 1898 172 Mass . 217 52 N . E . 75 . 368 THE LAW OF CONVEYANCING . § 301 , the deed " was held to be erroneous , as M was merely the scrivener , not representing the grantee in any way , and he simply left the deed on the table . The court con siders it settled that an acceptance is necessary , and that it must be either by the grantee or by some one represent ing him , or by some one assuming to represent him , whose act of acceptance is afterward ratified . 24 Stronger evidence is required to show acceptance in some cases than in others, and it is essential in many cases to show an express acceptance . Such would generally be the rule where, by theterms of the deed , some obligation or burden is imposed on the grantee , as , for example , the assumption of personal liability for a mortgage.25 In such cases an express acceptance may be by word, or by exercising acts of ownership in accordance with the deed , as by the grantee 's selling the land conveyed . But it is evident that what might be acceptance in some other cases can not amount to acceptance in such cases . A deed , for ex ample , containing an assumption of a mortgage recorded by the agent of the grantor could not estop the grantee from disputing his acceptance of the deed as against a purchaser who had relied on the record . 26

But if the grantee in such a deed has disposed of the land conveyed to him by the deed , or otherwise exercised acts of ownership over it, he cannot deny his acceptance when an obligation imposed upon him by the deed is sought to be enforced .27 On the other hand , the law often supplies the evidence of acceptance by a presumption , where the conveyance is clearly beneficial , or at least not prejudicial to the grantee , ; 24 Dagley v . Black , 1902 , 197 Ill . 53 64 N . E . 275 . , , ; ; , 25

v . Terry 156 N . Y . 50 N . E . Blass 1898 122 953 Kellogg v . Cook , ; 1898 18 Wash . 516 52 Pac . 233 . , ; , 26 v . 60

Murphy . 82 N . W . . Hare Neb 135 312 Same case on a ; ; , W . . A . 64 N . . 29 L . R . former appeal 45 Neb 809 851 211 ; , , W . . 72 N . v . 27 Beeson Green 1897 103 Iowa 406 555 $ 302 DELIVERY. 369

and the grantee is not sui juris . In such cases a delivery to the parent or guardian of the grantee is generally con sidered a delivery . For example , a woman , in order to put her land beyond the reach of her former husband ,

signed and acknowledged a deed conveying it to her , , ,

children , all of whom with one exception were infants

and retained the deed in her possession after recording , , it . 28 The court says substantially that making a volun , ,

tary conveyance absolute in form and beneficial in effect

by a parent to one who is not sui juris and placing it upon

record , although possibly not effectual , withoutmore , be , tween adults is deemed to evince an unmistakable inten , , tion to give to the deed effect and pass title and the , , assent of the grantee if nothing further appears is pre

sumed from the beneficial character of the transaction . 29

§ 302 . If acceptance is prevented there is generally no

delivery . While slight evidence only is needed to show , acceptance in many cases and while there will be a pre , sumption of it in certain others it cannot be found as a , , fact even where the conveyance is clearly beneficial when

there has been a direct declination of the deed . For ex , , ample in Nicholl ' s Appeal 30 the proceeding was to restore , ; ; 28 Colee v . Colee 122 Ind . 109 23 N . E . 687 17 Am . St . R . 345 . There , a though report of had been divorce the this case does not show it . , , ; 29 See Hall v . Cardell 1900 111 Iowa 206 82 N . W . 503 . In this case , the grantee was an infant but a few weeks old . Although as the court

says , may actually to the deed not have been beneficial such a young , , , child yet as it was not prejudicial acceptance may be properly pre , , , ; ; sumed . Rhea v . Bagley 1897 63 Ark . 374 38 S . W . 1039 36 L . R A . , , ; ; ; 86 Arrington v . Arrington 1898 122 Ala . 510 26 So . 152 Winterbot , , , , ; ; tom v . Patterson 1894 152 Ill . 334 38 N . E . 1050 Hall v . Hall 1891 , ; ; , , ; . 17 S . W .

Compton v . 86 107 Mo 101 108 811 Church 1891 Mich . 33

48 N . W . 635 . But the meremaking of a conveyance by a father for the , , benefit of his children without recording it or mentioning it has been in of considered as not evidence delivery when taken connection with

his continued dominion over the property and possession of the deed . ; ; ; , , . R . W . 36 . St . 22 S . Cazassa v . Cazassa 1893 92 Tenn 573 560 Am 112 20 L . R . A . 178 . , ; 80 1899 190 Pa . St . 308 42 Atl . 692 .

24 - BREWS . Con . 370 THE LAW OF CONVEYANCING . § 302 what was called a " lost deed . ” A father had made and sealed a conveyance and handed it to his son , who de. clined it, simply saying to his father to keep it and all he had as long as he lived . The court remarks that as a re sult of this “ filial suggestion ” the case has to deal, not with a lost deed , but with an undelivered deed , which , is no deed at all : it was undelivered and inoperative be , cause it was tendered and refused . 31 Hence also in those

states where acceptance is considered necessary to com , , plete " delivery ” if before acceptance something happens , , other than express declination to prevent it there is no , delivery . For example if the grantee die before accept

ance his heir cannot accept the deed so as to make the de , livery complete . 32 Or if before acceptance of the convey . , , by ance the grantee the grantor recalls the deed there is

no delivery . 33 Nor is there if before acceptance the

grantor conveys the land to some one else . 34 So a lien by placed upon the land before assent is given the grantee by will take precedence of the deed . The lien may be an , , ; by act of the grantor for example a mortgage given him 35 , or by an act of a third party as a creditor acquiring a lien by 36 judgment . , However surrender and acceptance need not be concur , , , rent acts and generally where nothing happens to pre , , , vent acceptance it may be made it appears at any time

after the grantor ' s surrender . The grantee ' s acceptance

will relate back to the grantor ' s surrender . The time be , tween the two may be longer or shorter and its length ap , , ;

31 See Spencer v . Spruell 1902 196 Ill . 119 63 N . E . 621 . , , , , ; 32 Jackson v . Phipps 12 Johns . 418 422 McElroy v . Hiner 1890 133 ;

Ill . 156 24 N . E . 435 . , , ; y 33 O Connor' . O ' Connor 1896 100 Iowa 476 69 N . W . 676 . , 44 Hawkes' v . Pike 105 Mass . 560 . , 35 Parmelee v . Simpson 5 Wall . 81 . , ; ; 36 Woodbury v . Fisher 20 Ind . 387 83 Am . D . 325 Cravens v . Ros ; ; , , . . . St . R . 38 22 S . W . siter 1893 116 Mo 338 736 Am 606 $ 303 DELIVERY 371 pears to be immaterial , so long as the rights of third parties have not intervened. 37

§ 303 . Presumption of delivery from certain facts Possession of deed . - If the essential elements of “ de livery ” exist, it is evident that they may be shown in almost innumerable ways . The discussion at length , therefore , of the question whether a particular fact con stitutes delivery , would seem to be unprofitable , because the correct answer to such a question must depend upon what the other facts are that accompany the fact in ques tion . There are , however , certain facts and circum stances which , if found in a particular case , give rise to presumptions of importance in settling the question of delivery . For example , the possession of a regularly executed deed by the grantee named in it, or by one holding under

him , is prima facie evidence of its delivery . 38 And it has

been said of such a circumstance “ that only clear and convincing evidence can overcome the presumption , oth , erwise titles could be easily defeated and no one could be

regarded as being secure in the ownership of land . ” 39 , , Plainly however it is not prudent to rely entirely on the

nominal grantee ' s possession of the deed as evidence of

his ownership : he may have possession when there has , been no valid delivery 40 and a person dealing with him

as owner in perfect good faith may be the loser — a princi by ple well illustrated a recent case . 41 , , ; 87 See Dettmer v . Behrens 1898 106 Iowa 585 76 N . W . 853 . , , ; ; 88 Butrick v . Tilton 141 Mass . 93 6 N . E . 563 Ward v . Dougherty ; ; ; , , 75 Cal . 240 17 Pac . 673 7 Am . St . R . 151 Inman v . Swearingen 1902 , , ; ; ; 198 I11 . 437 64 N . E . 1112 McGee v . Allison 1895 94 Iowa 527 63 N . ; , , ; ; W . 322 Hathaway v . Cass 1901 84 Minn . 192 87 N . W . 610 Swank , , ; v . 37 . 61 . Swank 1900 Ore 439 Pac 846 . , 39 Tunison v . Chamblin 88 Ill . 379 . , ; 40 Barron v . Mercure Mich( . 1903 ) 93 N . W . 1071 9 Detroit Leg .

News 671 . ,

Cameron v . Gray" 202 Pa . St . 586 . See also cases cited in $ $ 306

and 310 . 372 THE LAW OF CONVEYANCING . § 304

$ 304 . Presumption of delivery - Recording. — As to what effect is to be given to the recording of a deed , and to what extent it is evidence of delivery , there is some conflict of opinion . The general rule , however , appears to be that the re cording of a deed is prima facie evidence of delivery , but is not conclusive , and the presumption arising from re cording may be rebutted , either by direct evidence or by

the circumstances under which the recording was done .12 In states where acceptance by the grantee or knowledge by him of the deed need not be shown , the recording of the deed by direction of the grantor would place the title beyond his control so that he could not thereafter change his mind and defeat the title of the grantee by resuming possession of the deed , even though the grantee knew nothing of it till after the attempted recall by the grantor .43 On the other hand , where a deed has been re corded by the grantor , without the grantee ' s knowledge or assent, the recording has been considered simply as some evidence of delivery to be regarded with other evi dence of accompanying facts or later circumstances , such

as possession and control of the deed or the property . # Though if the grantor , with the knowledge and consent of the grantee , records the deeds with intent to divest himself of title he will be concluded by the delivery thus shown . 45

42 Jourdan v . Patterson , 1894 , 102 Mich . 602 ; 61 N . W . 64 ; Holmes v . McDonald , 1899 , 119 Mich . 563 ; 78 N . W . 647 ; 5 Detroit Leg . News 914 ; Sullivan v . Eddy, 1894 , 154 Ill. 199, 208 ; 40 N . E .482 ; Bush v . Genther , 1896 , 174 Pa . St. 154 ; 34 Atl. 520 ; Sweetland y . Buell , 1900 , 164 N . Y . 541 , 552 ; 58 N . E . 663 ; Koppelmann v . Koppelmann , 1900 , 94 Texas 40 ; 57 S . W . 570 ; Smith v. Smith 1903 , 116 Wis . 570 ; 93 N . W . 452 . 48 Robbins v . Rascoe, 1897 , 120 N . C . 79 ; 26 S. E . 807 ; 58 Am . St . R . 774 . 44Cravens v . Rossiter, 1893 , 116 Mo. 338 ; 22 S . W . 736 ; 38 Am . St . R . ; ; 606 ; O 'Connor v . O 'Connor , 1896 , 100 Iowa 476 69 N . W . 676 Davis , , , ; ; v . Davis 1894 92 Iowa 147 60 N . W . 507 Weber v . Christen 121 III . ; ; 91 11 N . E . 893 2 Am . St . R . 68 . , , ; 45 Brady v . Huber 1900 197 III . 291 64 N . E . 264 . § 305 DELIVERY . 373

The doctrine of some courts is that the mere recording of a deed by direction of the grantor without some other act or declaration manifesting his intent to deliver the deed , is not evidence of delivery ,46 though the grantor actually intended , when he had the deed recorded , to pass the title to the land described in the deed to the grantee . 47 The general rule being that the record of a deed is but some evidence of delivery , often overcome by circum stances which are not matters of record , it is evident that the popular conception of the value of a " record title ” is not well founded in law , and that the record really is of but slight assistance in establishing a fact relating to the title which is of vital importance : that is, delivery . This is one feature of our present system which is recognized as furnishing ground for some such reform as the so called “ Torrens System , ” under which it is claimed that the disadvantages resulting from the failure of our records to really show the title , in this and in other ways , will be lessened if not wholly removed .

§ 305 . Postponing complete delivery till death ofgrant or. - Among the most difficult cases in which the ques tion of delivery is involved are those where a grantor wishes to postpone till his death the complete effect of a deed . In such cases disappointed heirs often claim that

46 Egan v . Horrigan , 1901 , 96 Maine 46 ; 51 Atl. 246 . 47 Barnes v. Barnes, 1894 , 161 Mass . 381 ; 37 N . E . 379 . The court says in this case : “ If the question were a new one there would perhaps be nothing difficult or impracticable in the conception that the act of leaving a deed with the register for record by the grantor , with the in tent on his part thereby to vest the title in the grantee , should consti tute the register the agent for delivery of the grantee , and that upon the assent of the grantee the transaction should take effect as a valid delivery . But we think the law is otherwise in this state .” It is, how ever, now provided by statute in Massachusetts that the record of a deed duly acknowledged , etc ., “ shall be conclusive evidence of the delivery of such instrument , in favor of purchasers for value without notice , claiming thereunder. ” Mass. R . L . 1902 , C . 127 , $ 5 . 374 THE LAW OF CONVEYANCING . $ 306 the deed is ineffectual for want of delivery , and while the purpose of the grantor may have been the avoidance of a contest over his will, had he made one, or the saving of the expense of administration , the result often is very

different from what he intended , for the litigation and , , expense are increased rather than diminished by his

conduct . Grantors in such cases might generally accom by plish what they appear to desire making conveyances

reserving to themselves life estates in the property con , , , veyed and delivering the conveyance to the grantee but , for one reason or another this course is often not pur

sued .

Cases in which the grantor wishes and attempts to post

pone the taking effect of his conveyance until his death

may be grouped into two general classes :

1 . Those in which the grantor himself retains posses , sion of the deed still with the intention that after his

death it shall come into the grantee ' s possession . by 2 . Those in which the conveyance is deposited the , grantor with a person other than the grantee to be finally

delivered to the grantee after the grantor ' s death .

$ 306 . Effect of grantor ' s retention of possession and , control of the deed . — As to the first general class of cases namely , those where the grantor signs , seals and ac , knowledges a deed but retains possession and control of , it nevertheless plainly intending that it shall come into , the grantee ' s control after the grantor ' s death the gen , eral rule is that there has been no valid delivery even

though the grantor has left directions — written or other

wise - clearly showing his intention that the grantee is to

have the deed .

The grantor in such a case has not taken the first step

essential to delivery — that of surrendering control of the

deed . When it is said that the grantor ' s intention is con , trolling it must be meant not his intention merely that , the grantee shall some time possess the land but his in § 306 DELIVERY 375 tention that the deed shall be delivered in his lifetime , and that the grantee shall thereby finally possess the land .

For , so far as the grantor is concerned , the delivery must be complete in his lifetime. He must therefore lose con trol of the deed .

Hence , the grantor 's giving the grantee a key to his safety deposit box , with directions to get the grantor 's will in case of his death , will not amount to the delivery of a deed found in the box with the will after the grant or ' s death ; though the deed is in an envelope addressed to the grantee , which also contains written directions for the recording of the deed by the grantee on opening the envelope .48 Nor will a deposit by the grantor of a deed among the grantee ' s papers , of which the grantor has charge , the grantor intending the deed to come into the grantee 's possession on his death , constitute a delivery .49 The practical application of these principles will often result in loss to a person who has purchased land relying on the record title . For example , a deed was kept in the possession of the grantor, but with written directions for recording it and handing it to the grantee after the grant or 's death : the grantee , having received the deed after the grantor 's death and having had it recorded , afterward sold the land described in it to a bona fide purchaser : in this action by the heirs of the deceased grantor it was held that there had been no delivery of the deed and that therefore the deed was wholly void , and that the subsequent bona fide purchaser acquired no title as against the heirs of the grantor. 50 In such cases the fact that the deed is found in the maker 's possession is not enough of itself to settle the question of delivery ; the mere fact that the grantor re ; 48Hawes v . Hawes , 1899 , 177 Ill . 409 53 N . E . 78 . See also Taft v . , ; ; ; , . 26 N . W . 60 . R . Taft 59 Mich 185 426 Am 291 Parrott v . Avery 16 : 28 N . W . 928 3 . 60 , ; ; A 1797 . B . 299 . 5 1893 159 Mass . 594 35 N . E . 94 38 Am . St . R . 465 . Parre , ; 49 v .

Dyke . 11 S .

Grigsby . 30 75 N . Van 1898 Dak W . 274 . , ; ; 60 Stone v . French 37 Kan . 145 14 Pac . 530 1 Am . St . R . 237 . 376 THE LAW OF CONVEYANCING . § 307 tains the deed in his own possession and under his con , trol does not prevent its being enforced as a deed if he

has once effectually delivered it . , , Even however in those cases where strong presump

tions in favor of delivery are made ( as where parents , make deeds to children but retain possession of the , deeds ) there must generally be something more - in , order to constitute delivery — than the signing sealing , and acknowledging of the instrument which is then re ; by tained the grantor and where delivery is found in

such cases it will generally be because some other fact ex . , ists besides the mere making of the instrument - as for , example recording with an expression of intention to . 51 make a present delivery

§ 307 . Effect of grantor ' s depositing deed with a third

person : reserving no control . — The second class of cases , mentioned51a may include cases in which the grantor , though handing the deed to a third person yet reserves , control over it as well as cases in which he reserves no

control over the deed after parting with its possession .

Where the grantor deposits with a third person the , deed as his present deed directing the depositary to , deliver it to the grantee at the grantor ' s death and re , , serves no control over it nor right to recall it there is a , , valid delivery . There is a delivery that is so far as the

grantor is concerned — he has surrendered control of the

deed with intent that title shall pass to the grantee . The by deed becomes operative when it finally is accepted the , by grantee on its being given to him the depositary in

accordance with the grantor ' s directions . In such cases

generally the deed is regarded as delivered as of the time

when the grantor surrenders control of it to the deposi , ; ; ;

61 See Fain v . Smith 14 Ore . 82 12 Pac . 365 58 Am . R . 281 Ireland , , , ; · v . Geraghty 15 Fed . 35 and note Cline v . Jones 111 Ill . 563 . , blo

supra $ See 305 . § 308 DELIVERY . : 377

tary : the delivery relates back to that time.52 So, for , example where a deed is delivered in this way to a custo ,

dian to give to the grantee on the grantor ' s death title , vests at the time of delivery to the custodian and the

deed will take precedence over a subsequent devise of the by same property the grantor . 53

Often in such cases there is a recital in the deed that it

is not to become operative or be “ delivered " until the , ,

death of the grantor . Such a recital however does not , make the instrument testamentary in character nor pre

vent its taking effect as a deed if the grantor has actually

surrendered control of it to the depositary . 54 by $ 308 . Effect of reserving control grantor in such

cases . - Such cases as those last cited are to be distin

guished from those in which the grantor deposits the

deed with a third person to be delivered to the grantee on , , the grantor ' s death but retains dominion over it or re

serves to himself the power to recall it before his death .

In these latter cases there is no delivery and no title , , passes to the grantee and this is so according to the , weight of authority even though the grantor does not re

call the deed .

52 Cases in which the foregoing rule is applied are often before the

courts . From the many decisions on the subject the following will , , : v . of suffice to show the general application the rule Ruiz Dow 1896 , ; , ; ; 45 N . E . . v .

45 . Murphy 113 Cal . 490 Pac 867 Shea 1897 164 Ill 614 ; ; , , ; ; N . E . . 45 v .

. St . R . Rayl 1021 56 Am 215 Stout 1896 146 Ind 379 515 , , ; ; Dettmer v . Behrens 1898 106 Iowa 585 76 N . W . 853 68 Am . St . R . ; , , ; 326 Meech v . Wilder 1902( Mich . ) 8 Detroit Leg . News 1141 89 N . , , ; ; ; W . 556 Fulton v . Priddy 1900 123 Mich . 298 81 Am . St . R . 201 , , ; ; 82 N . W . 65 6 Detroit Leg . News 103 Martin v . Flaharty 1893 13 ; ; ; ; Mon . 96 32 Pac . 287 40 Am . St . R . 415 19 L . R . A . 242 Brown v . ; ; ; , , R . 66 N . W . . . Westerfield 1896 47 Neb . 399 53 Am St 532 439 Die , , ; ; fendorf v . Diefendorf 1892 132 N . Y . 100 30 N . E . 375 Ball v . Fore , man 37 Ohio St . 132 . , , ; , 53 Ranken v . Donovan 1899 46 App . Div . 225 affirmed 166 N . Y . ;

626 60 N . E . 1119 . ; 54 See ante $ 29 in addition to the authorities last cited . 378 THE LAW OF CONVEYANCING . . § 308

Where the depositary is the servant or employe of the grantor, and is given charge of the deed in order to pre serve it for the grantor and not absolutely for delivery to the grantee , the case is not difficult, for the possession of the

servant in such a case is the possession of the grantor and his intent that the grantee shall ultimately have the deed is ineffectual , as it is not accompanied by an act by which the grantor parts with the possession of the deed for the benefit of the grantee , 56 and even if the depositary is not the general servant of the grantor but holds the deed sub ject to his order as his bailee or agent , and in such a manner that the grantor may revoke the deed , there is no delivery . 56 Nor will the title of the grantee be good even though the depositary , holding the deed under such cir cumstances , delivers the deed to the grantee after the death of the grantor.57 The difficulty in many of these cases is in deciding whether or not the circumstances warrant the conclusion that there has been a reservation of control of the deed by the grantor . For example , in one case the deed was given to the grantor' s housekeeper to keep and to give

to the grantee ( a son of grantor ) at the death of the grantor : the housekeeper placed the deed in the grant or's trunk in his room and gave him the key of the trunk , and he carried the key in his pocket till his death . The deed seems therefore not to have left his possession and control , but the majority of the court held that there

55 Porter v . Woodhouse , 1890 , 59 Conn . 568 ; 22 Atl . 299 ; 21 Am . St. R . 131 ; 13 L . R . A . 64 . 56 Burk v . Sproat , 1893, 96 Mich . 404 ; 55 N . W . 985 ; Kenney v . Park , 1899, 125 Cal. 146 ; 57 Pac . 772 ; Tarlton v . Griggs , 1902, 131 N . C . 216 ; 42 S. E . 591. 57 Osborne v . Eslinger , 1900 , 155 Ind . 351 ; 58 N . E . 439 ; 80 Am . St. R . 240 ; Williams v. Schatz , 42 Ohio St. 47 ; Wilson v . Wilson , 1895 , 158 Ill. 567 ; 41 N . E . 1007 ; 49 Am . St . R . 176 ; Baker v . Haskell , 47 N . H . 479 ; 93 Am . D . 455 ; Johnson v . Johnson (1903 R . I.) , 54 Atl . 378 . § 309 DELIVERY . 379 was sufficient evidence to warrant the finding by the jury of delivery . 58 So in many cases the grantor , in giving the deed to the depositary , directs him to give the deed to the grantee if the grantor dies , but if the grantor recovers to return it to him . In such cases where the grantor reserves no power to recall or revoke the deed , the question is whether it is beyond his control, and as he cannot control his death or recovery and has reserved no power to recall the deed be fore his recovery , there appears to have been a valid de livery , so far as he is concerned ; yet it has been held in such cases that there has been no delivery , because the deed is under the control of the grantor up to the time of his death .59

$ 309 . Delivery in escrow . - In many of the decisions concerning the depositing of a deed with a third person to hold till the grantor 's death , the transaction is spoken of as a delivery in escrow . Such cases , however , are not , strictly speaking , generally cases of delivery in escrow . , Whether when a deed is signed , etc . and not immedi , ately delivered to the grantee but is handed to a stranger , to be delivered at a future time it is to be considered as , the deed of the grantor presently or as an escrow is often ; a matter of some doubt the answer to the question will

generally depend rather on the words used and the pur poses expressed , than upon the name which the parties

give the instrument .

Where the future delivery is to depend on the payment

of money or the performance of some other condition it

will be deemed an escrow . Where it is merely to await , the lapse of time or the happening of some contingency , and not the performance of any condition it will be , , ; 58 Monroe v . Bowles 1900 187 Ill . 346 58 N . E . 331 . , , ; ; 59 Williams v . Daubner 1899 103 Wis . 521 79 N . W . 748 74 Am . St . ; , R . 902 Williams v . Schatz 42 Ohio St . 47 . 380 THE LAW OF CONVEYANCING . § 309 deemed the grantor's deed presently — taking effect as a deed at the “ second delivery , ” but by “ relation from the

first delivery ." 160 The distinction is sometimes stated to , , be not important or material but it may be so because if

there be a delivery in escrow no title passes till the

" second " delivery or the fulfillment of the condition . if is While the deed one in praesenti the title passes upon

the happening of the certain event designated or the lapse , by of time : it passes relation from the time the instru

ment was placed in the hands of the depositary . , , ,

An escrow is therefore a writing having the form of a , deed but the effect of which depends upon the fulfillment of

conditions upon which it is to be delivered to the grantee . 61

The conditions upon which the escrow is to be delivered , ,

may be expressed in writing or may be spoken or may

be partly in one form and partly in another . 62 Thus the , title is made to depend partly in parol and it is said that

some of the earlier authorities evidently contemplate that , by all escrows should be evidenced writing though such

does not appear to be the modern rule . 63 Escrows have , therefore been called “ deceptive instruments ” not what , they purport to be and capable of being used to deceive innocent purchasers . 64 , , ,

Conditions however cannot according to the weight of , authority be thus attached to a deed when it is delivered ,

to the grantee therefore there can be no delivery in ; escrow to the grantee such a delivery must be to a , “ stranger ” or a “ third person ” one not a party to the

instrument nor identified with the parties in such a way

as to prevent his being a depositary . 65 , , RO v . 3 . . v . 34 Foster Mansfield Met 412 See Hathaway Payne N . Y . , 92 107 . , ; 61 Prutsman v . Baker 30 Wis . 644 11 Am . R . 592 . , ; 62 v . 16 . 16 Gaston Portland Ore 255 Pac . 127 . , , ; 63 Taft v . Taft 59 Mich . 185 198 26 N . W . 426 . , , ; ; 64 Hubbard v . Greeley 1892 84 Me . 340 17 L . R . A . 511 24 Atl . 799 . , And see Pawling v . U . S . 4 Cranch 219 . , , ; ; 65 Darling v . Butler 1891 45 Fed . R . 332 10 L . R . A . 469 Cincin § 310 DELIVERY . 381

§ 310 . Effect of grantee's obtaining possession of es crow wrongfully . — The obtaining by the grantee of a deed held in escrow , before the fulfillment of the condi tion , or otherwise wrongfully or fraudulently , can con vey no title to him . Whether an innocent purchaser from him acquires title , is a question upon which there is some conflict of opinion . The evident hardship in such cases on the subsequent purchaser, who is warned by nothing on the face of the deed , has led many courts to protect a bona fide purchaser from a grantee who has obtained possession of an escrow , without performing the condition upon which the deed was delivered ;66 and especially where the original grantor

— who makes the escrow — has done some act by which he should be estopped from claiming title as against an in nocent purchaser , as, for example, putting the person named as grantee ( in the " escrow "') in possession of the property . 67 But the rule that appears to be supported by the weight of authority is, that in the absence of some act on the part of the grantor creating an estoppel, or amounting to a ratification of the conveyance by the grantee who has wrongfully obtained possession of the deed , no title passes to the subsequent purchaser . The reason for this view is that the original grantee , in such a case , acquires no title by the deed obtained from the de positary without performing the condition , and so can convey no title to his own grantee .68 , ; , nati & c . Railroad Co . v. Iliff, 13 Ohio St . 235 254 Dyer v . Skadan , ; ; 1901 128 Mich . 348 87 N . W . 277 8 Detroit Leg . News 701 . , ; ;

66 Blight v . 10 Pa . St . 51 . . See Schenck 285 Am Dec 478 ; Hubbard 478 . , , ; ; ; v . 84 24 . 17 L . R . A . .

Greeley . 1892 Maine 340 Atl 799 L 511 17 Rec 799 . , Atl 34 , , ; ; , 67 Schurtz v . Colvin 1896 55 365 Ohio St . 274 45 N . E . 527 Quick v . 1896 , , Colvin ; ; Milligan 108 Ind . 419 9 N . E . 392 58 Am . R . 49 . See Simson v . Bank , ; ; 43 Hun 156 affirmed 120 N . Y . 623 23 N . E . 1152 . , , ; ; 68 Dixon v . Bristol Savings Bank 1897 102 Ga . 461 31 S . E . 96 66 , , ; ; ; Am . St . R . 193 Jackson v . Lynn 1895 94 Iowa 151 62 N . W . 704 58 , ; ; , , ; E . 36 N .

v . Sharpsteen Am . St . 386 Burnap 1894 149 Ill 225 1008 382 THE LAW OF CONVEYANCING . § 311

§ 311. Effect of surrender or destruction of a deed .

The effect of a properly delivered deed being to transfer the legal title to the grantee , this legal title cannot be re invested in the grantor by a redelivery or surrender of the

deed , or by its accidental or intentional destruction . For , example the cancellation of the grantor ' s name is not ; enough to revest the title in him 69 nor is the total de , struction of the deed whether done with or without the , intention of reinvesting the grantor with the title . 70 If , however the grantee surrenders or redelivers an unre

corded deed with the intention that it be destroyed for the , purpose of revesting the title in the grantor though the by legal title may not be reacquired the grantor in this , 71 .

an equitable way he may acquire title And the inten by tional destruction the grantee of an unrecorded deed

for the purpose of revesting the title in the grantor may , ,

practically according to many decisions have the effect

intended , for the grantee , having deliberately destroyed , the best evidence of his title may not produce secondary , evidence to sustain it and therefore he cannot establish

it if he would . 72 , ; Everts v . Agnes 4 Wis . 343 65 Am . Dec . 314 . In this case such a deed is , likened to a forged or stolen deed and distinguished from a deed which

the grantor is fraudulently induced to execute : “ In the latter case , the legal title passes and a subsequent purchaser is protected . In the

passes , a subsequent purchaser former no title whatever and is not pro

tected . In the one class of cases there is the voluntary assent of the , grantor in the other there is no assent at all . ” , ; 69 Turner v . Warren 160 Pa . St . 336 28 Atl . 781 . , , ; 70 Spangler v . Dukes 39 Ohio St . 642 Albright v . Albright 70 Wis . , , ; ; ; ; 528 537 36 N . W . 254 Hyne v . Osborn 62 Mich . 235 28 N . W . 821 , , , , , p Brown v . Hartman 1899 57 Neb . 341 see note . 344 77 N : W . 776 . , , ; 11 Fletcher v . Shepherd 1898 174 Ill . 262 51 N . E . 212 . , , ; ; 72 See Potter v . Adams 1894 125 Mo . 118 28 S . W . 490 46 Am . St . , ; ; R . 478 Farrar v . Farrar 4 N . H . 191 17 Am . Dec . 410 .