Before quitting the subject of delivery, it is right to explain the distinction between a deed ordinarily so

66, was similarly decided in Connecticut upon much the same facts as in Doe v. Knight, and in 1814, twelve years before the decision of that case (which is also reported in 8 Dowl. & Ryl. 348, and see Exton v. Scott, 6 Simons, 21), the same conclusions had been arrived at, upon a review of nearly the same authorities, in the case of Souverbye v. Arden, 1 Johnson's Ch. R. 240, decided by Mr. Chancellor Kent, where the grantor of a voluntary deed having sworn in his answer to a bill filed by the grantees, "that he believed that he and his wife sealed the deed in the presence of two witnesses, and that they may have used the formal words of delivery," it was held that neither the subsequent retention of the possession of the deed by the grantor, nor his subsequent declaration contrary to its tenor, could destroy its efficacy (Young v. Moore, 1 Strobhart, 55); and it is well settled that if the deed has ever been once actually delivered, the retention or the parting with its possession is an immaterial fact. Scruggins v. Wood, 15 Wendell, 545; Jackson v. Dunlop, 1 Johns. Cases, 114; Brinkerhoff v. Lawrence, 2 Sandford's Ch. 406; Rosevelt v. Carrow, 6 Barbour's S. C. R. 190; Jones v. Jones, 6 Connect. 111; Den v. Farlee, 1 Zabriskie, 285; Blight v. Schenck, 10 Barr, 285; Farrar v. Bridges, 5 Humphreys, 411.

But upon the question whether there has ever been a delivery, the possession of the instrument may have a material bearing. Delivery is, to a certain extent, a question for the jury, but under the direction of the Court; to what extent may be well exemplified by the case of Doe v. Knight, which was an ejectment upon a mortgage. Wynne, an attorney, who had been in his lifetime the owner of the premises in question, had received a large sum for his client Garnons, and sent word to him that he had misapplied £10,000 of it, but that he would make him secure. Some years after Wynne wrote with his own hand a mortgage of all his property to Garnons to secure £10,000, brought it into the presence of his niece, signed and sealed it, said, “I deliver this as my act and deed," and then took it away. In the same month he delivered a parcel to his sister, saying, "Take this, it belongs to Mr. Garnons." Some days after, he asked for and took away the parcel, and in a few days returned it, somewhat reduced in bulk, saying, "Here, put this by." Some months after this, Wynne died, having first executed a second mortgage of all his property to another person. The parcel was found to contain the mortgage which the niece had witnessed, which was to secure

termed, and an escrow. An escrow is a deed delivered conditionally to a third person, to be delivered to the

£10,000, together with a statement of the account between Garnons and himself, showing an indebtedness of that amount. The jury were told that if the delivery to the sister was, under the circumstances, a departing with the possession of the deed, and of the power and control over it for the benefit of Garnons, and to be delivered to him either in Wynne's lifetime, or after his death, they should find for the plaintiff, but that if it was merely delivered to her for safe custody as the depositary, and was subject to his future control and disposition, they should find for the defendant. The jury having found for the plaintiff, Sir John Bayley, in delivering the opinion of the Court refusing a new trial, adverting to the objection that the conclusion which the jury drew, viz., that the sister held the mortgage free from the control of her brother, had no premises to support it, answered it by saying that although the sister did return it, yet she would have been justified had she refused. (See to the same effect as to the depositary being a trustee for the grantee, Belden v. Carter, 4 Day, 66.) Two questions, therefore, arose; first, whether when a deed is duly executed and formally delivered with appropriate words, but retained by the party executing it, that retention will obstruct the operation of the deed, which question was answered in the negative; and, secondly, whether if delivery for such party be essential, a delivery to a third person will be sufficient, if such delivery puts the instrument out of the power and control of the party who executed it, though such third person does not pass the deed to the party to be benefitted until after the death of the grantor. This question was answered in the affirmative; and both of these propositions are perfectly settled law on both sides of the Atlantic. Belden v. Carter, 4 Day, 66; Johnson v. Ruggles, 13 Johns. 288; Brown v. Brown, 1 Woodbury & Minot, 325; Bryan v. Wash, 2 Gilman, 557; Merrills v. Swift, 18 Connect. 257; and see many cases collected in the opinion of the Court in Hulick v. Scovil, 4 Gilman, 159.

The grantor's placing the deed upon record-his putting it in the post office directed to the grantee-his bringing an action for the consideration money-the grantee's having possession of the deed-or of the premises consistently with the tenor of the deed-constitute prima facie evidence, upon which the jury may presume that the deed was delivered; Porter v. Cole, 4 Greenleaf, 25; Ward v. Lewis, 4 Pick. 520; Mills v. Gore, 20 Id. 36; Games v. Stiles, 14 Peters,

person for whose benefit it purports to be, on some condition or other. If that condition be performed, it

322; Collins v. Bankhead, 1 Strobhart, 25; Houston v. Staunton, 11 Alabama, 412; M'Kinney v. Rhoads, 5 Watts, 343; Rigler v. Cloud, 2 Harris, 364; Blight v. Schenck, 10 Barr, 285; Gardner v. Collins, 3 Mason, 401. So, where a deed was left in the hands of the magistrate before whom it was acknowledged, and was afterwards taken away by the brother of the grantee for him, this was held sufficient evidence to go to the jury; from which they might presume delivery, Arrison v. Harmsted, 2 Barr, 191; while, on the other hand, if the deed were put into the post office, directed not to the grantee nor his agent, but to an agent of the grantor, it would be error to leave the question of delivery to the jury, as there would be no evidence from which delivery could be presumed; Elsly v. Metcalf, 1 Denio, 324; White v. Baily, 14 Connect. 271. So, where there were neither acts done nor words spoken from which a delivery could be inferred, and the possession of the deed by the party seeking to take advantage of it, was accounted for by his having taken possession of all the papers of the grantor after his death, it was held error to leave the question of delivery to the jury; Clayton v. Liverman, 4 Dev. & Battle, 238.

It is suggested by the English editor (in note b, supra) that the qualifications adopted in Doe v. Knight had been overlooked by the more recent authorities, and that the doctrine of that case has been of late more broadly laid down. But it is believed that they do not either narrow or enlarge the rules adopted in that case, being (with but one exception, Grudgeon v. Gerrard) cases of voluntary settlements in favour of near relatives, or the like, sought to be enforced in equity, as to which, it has been repeatedly held, that Courts will go farther in the presumption of a delivery than in ordinary cases of conveyance; Bryan v. Wash, 2 Gilman, 557; Brown v. Brown, 1 Wood. & Min., 325; Souverbye v. Arden, &c. In Fletcher v. Fletcher, cited by him, a testator executed a voluntary covenant with trustees, that in case his two natural sons should survive him, his executors should pay to the trustees £60,000 for such of the sons as should be living at the time of his death. This instrument, which purported to be regularly executed, was found among the testator's papers some years after his death, and upon a bill filed by the surviving son to have the covenant enforced, the stress of the argument was laid upon the deed being voluntary, executory, and testamentary, and as such revoked

becomes an absolute deed; till then it continues what is called an escrow, and if the condition never be performed, it never becomes a deed at all.

by the subsequent will, and Vice Chancellor Wigram, after answering these objections, said, "The only other question arises from the circumstance of the instrument having been kept in the possession of the party, does that affect its legal validity? In the case of Dillon v. Coppin, 4 Myl. & Cr. 660, I had occasion to consider that subject, and I took pains to collect the cases upon it. The case of Doe v. Knight shows that if an instrument is sealed and delivered, the retainer of it by the party in his possession, does not prevent it from taking effect. No doubt the intention of the parties is often disappointed by holding them to be bound by deeds which they have kept back, but such unquestionably is the law." The cases thus referred to were Barlow v. Heneage, Pre. Ch. 211; Lady Hudson's case, Id. 235; Clavering v. Clavering, 2 Vernon, 473, Dom. Proc. 1 Bro. P. C. 122; Broughton v. Broughton, 1 Atkins, 625; Doe v. Knight, Sear v. Ashwell, 3 Swans. 411; Worral v. Jacob, 3 Merivale, 256; and Exton v. Scott, 6 Simons, 31; the first four of which were all cited and reviewed in Doe v. Knight, and the language used in that case by Sir John Bayley, and quoted supra, was cited by Mr. Wigram at length.

In looking at the cases in equity upon this head, much will be found to turn upon the nature of the instrument, and the purpose for which it was intended. (Bryan v. Wash, 2 Gilman, 557; Souverbye v. Arden, &c.) Thus, in Ward v. Lamb, Prec. Ch. 182, the Court refused to decree the giving up of a voluntary bond made to a daughter, to protect the obligor from taxation, and retained by him; and in Cecil v. Butcher, 2 Jacob & Walker, 573, the Court refused to enforce a conveyance made (and retained) by a father in favour of a son in order to give him a qualification to kill game, and the Master of the Rolls, after reviewing the authorities, said, "They have not depended solely upon the question whether the party has made a voluntary deed; not merely upon whether having made it, he keeps it in his own possession; not merely upon whether it is made for a particular purpose; but when all these circumstances are connected together, when it is voluntary, when it is made for a purpose that has never been completed, and when it has never been parted with, then the courts of equity have been in the habit of considering it as an imperfect instrument." Ward v. Ward, 2 Haywood, 226; Jack

This conditional delivery must be to some third person, for if it were to the party himself who is to be

son v. Inabnit, 2 Hill Ch. 411; Kirk v. Turner et al., 1 Devereux's Ch. 14.

The acceptance by the grantee of a deed is as essential to its validity as its delivery by the grantor. It rests, however, upon much stronger presumptions where the deed purports to confer a benefit, and an actual acceptance need not then be shown in the first instance, either by the grantor himself, or any one beneficially interested under it. Butler & Baker's case, 3 Coke, 26 b; Thompson v. Leach, 2 Ventries, 202; Hatch v. Hatch, 9 Mass. 307; Belden v. Carter, 4 Day, 66; Church v. Gilman, 15 Wendell, 656; Reed v. Marble, 10 Paige, 409; Tate v. Tate, 1 Dev. & Bat. (Ch.), 22; Halsey v. Whitney, 4 Mason, 214. The presumption is of course, however, liable to be rebutted, and it will be nearly, if not quite, overthrown in cases where the acceptance of the deed confers no benefit, or inflicts a positive harm upon the other party. Jackson v. Bodle, 20 Johnson, 184; Camp v. Camp, 5 Connecticut, 300; Renfro v. Harrison, 10 Missouri, 411.

How far the relation back of the subsequent acceptance to the original delivery will affect the attaching of intermediate interests, is a question of some practical importance. In Wilt v. Franklin, 1 Binney, 502, the rights arising under an execution levied between the period of delivery of an assignment for creditors, and assent by the grantee a space of four days,—were postponed to those arising under the deed. Merrills v. Swift, 18 Connect. 257, was very similar to Doe v. Knight. A debtor being in failing circumstances executed a mortgage, and delivered it to one for the use of the morgagee. The mortgage was immediately recorded, and some time after, was assented to by the mortgagee, and it was held to be entitled to a preference over an intermediate attachment. In Harrison v. The Trustees of Philips' Academy, 12 Massachusetts, 401, where an embarrassed debtor made a conveyance to his sureties by way of precautionary indemnity, of which they were ignorant till a month afterward, when it was assented to by them, it was said by Parker, C. J., that creditors might have arrested the transaction by an execution levied in the intermediate time; but there was a question of fraud in the case, evidence of which would, it is conceived, always invalidate such a transaction, and the remarks on Wilt v. Franklin in M'Kinney v. Rhoads, 5 Watts, 345, were directed to the want of delivery in that case, apart from which, it is said, that the decision is perfectly correct.