It is argued by appellants that the conveyance was intended to operate in the nature of a testamentary disposition of the property, not to take 408 effect until the death of Mrs. Brown, and authorities are cited in the brief to the effect that such a deed is invalid. The facts do not warrant such conclusion. The intention clearly was, that the deed should take effect at once. The recording alone was to be deferred until Mrs. Brown's death. This is not a case where a grantor has placed a deed in a depository to be delivered to the grantee upon the death of the grantor, reserving the right to recall the deed at any time. The authorities cited by counsel for appellants are, therefore, not applicable here. We are constrained to hold that the trial court was, under the circumstances, justified in finding a sufficient delivery of the deed.

The decree is affirmed.

What is a Delivery of a Deed.

The delivery of a deed, in the law of conveyancing, is a transfer of it from the grantor to the grantee, or to some third person for the grantee's use, in such a manner as to deprive the grantor of the right to recall it at his option, and with the intent to convey title; but to determine what constitutes such a transfer is sometimes a matter of extreme difficulty. The frequency with which the question has been brought before the courts is evidence of this. The delivery of a deed is, of course, essential to the transfer of the title: Younge v. Guilbeau, 3 Wall. 636; Parmelee v. Simpson, 5 Wall. 81; Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326, and note; Oliver v. Oliver, 149 Ill. 542; Price v. Hudson, 125 Ill. 284; Church v. Gilman, 15 Wend. 656; 30 Am. Dec. 82; Weber v. Christen, 121 Ill. 91; 2 Am. St. Rep. 68; Bullitt v. Taylor, 34 Miss. 708; 69 Am. Dec. 412; Rittmaster v. Brisbane, 19 Col. 371; note to Gant v. Hunsucker, 55 Am. Dec. 412, and cases there collected; Samson v. Thornton, 3 Met. 275; 37 Am. Dec. 135; Van Amringe v. Morton, 4 Whart. 382; 34 Am. Dec. 517; Hughes v. Easten, 4 J. J. Marsh. 572; 20 Am. Dec. 230; Herbert v. Herbert, Breese, 354; 12 Am. Dec. 192; Paddock v. Potter, 67 Vt. 360; Scott v. Scott, 95 Mo. 300; Hall v. Hall, 107 Mo. 101; Pennington v. Pennington, 75 Mich. 600; Schwab v. Rigby, 38 Minn. 395; Duraind's Appeal, 116 Pa. St. 93; Moody v. Dryden, 72 Iowa, 461; Cooper v. Jackson, 4 Wis. 537; Maddox v. Gray, 75 Ga. 452; Colyer v. Hyden, 94 Ky. 180; Hall v. Barnett, 71 Miss. 37; Nay v. Mograin, 24 Kan. 75; Hulick v. Scovil, 4 Gilm. 159; Bryan v. Wash, 2 Gilm. 557; Provart v. Harris, 150 Ill. 40; Turner v. Carpenter, 83 Mo. 333.

Leaving a deed signed and attested on a table, without delivery to any person, and in the absence of the donee, is not sufficient evidence of delivery: Hughes v. Easten, 4 J. J. Marsh. 572; 20 Am. Dec. 230. But where a deed of marriage settlement was duly executed by the

REFERENCE TO MONOGRAPHIC NOTES.

Delivery of deeds: 16 Am. Dec. 39-45; 40 Am. Rep. 217, 218; 58 Am. Rep. 289–296.
Deeds to take effect after death of grantor: 63 Am. Dec. 243-246.
Conveyance to take effect after grantor's death; 49 Am. St. Rep. 219-222,

parties, and laid on the table, and the wife, as cestul que trust, took it up and kept it in her possession until her death, it was held, unde the circumstances, to be a good and valid delivery of the deed; Jaques v. Methodist Episcopal Church, 17 Johns. 549; 8 Am. Dec. 447. Delivery of a deed is as essential to the passing of the title as is the signing or acknowledgment of it. It is the final act, without which all other formalities are ineffectual: Porter v. Woodhouse, 59 Conn. 568; 21 Am. St. Rep. 131. Delivery, or that which is legally its equivalent, is as essential to the validity of a deed as is the signature of the grantor: Colee v. Colee, 122 Ind. 109; 17 Am. St. Rep. 345; and delivery includes, not only an act by which the grantor parts with the possession of it, but also a concurring intent on the part of the grantor that it shall vest the title in the grantee: Porter v. Woodhouse, 59 Conn. 568; 21 Am. St. Rep. 131. If there is no delivery, the deed is inoperative: Stone v. French, 37 Kan. 145; 1 Am. St. Rep. 237; Gore v. Dickinson, 98 Ala. 363; 39 Am. St. Rep. 67; because the delivery of a deed is the final act of its execution: Newlin v. Osborne, 4 Jones, 157; 67 Am. Dec. 269. The finding that a deed was executed includes, as a necessary and essential incident, the delivery of the instrument: Colee v. Colee, 122 Ind. 109; 17 Am. St. Rep. 345; Pool v. Davis, 135 Ind. 323. A deed not delivered and accepted, though recorded, passes no estate: Herbert v. Herbert, Breese, 354; 12 Am. Dec. 192; and recording a void deed gives it no validity: Stone v. French, 37 Kan. 145; 1 Am. St. Rep. 237. Until a deed is delivered to the grantee to become presently operative, the grantor has a right to rescind or to recall it: Pennington v. Pennington, 75 Mich. 600; and so long as the delivery of a deed remains incomplete, a grantor can change his intention relating thereto, and destroy the deed if he so desires: Tyler v. Hall, 106 Mo. 313; 27 Am. St. Rep. 337. A deed takes effect only from the time of delivery, not from its date: County of Calhoun v. American Emigrant Co., 93 U. S. 124; McDowell v. Chambers, 1 Strob. Eq. 347; 47 Am. Dec. 539; Floyd v. Ricks, 14 Ark. 286; 58 Am. Dec. 374; Bryan v. Wash, 2 Gilm. 557; except where it is declared by statute to be efficient and operative from its date, as in Maryland: Betts v. Union Bank, 1 Har. & G. 175; 18 Am. Dec. 283. The effect of executing a deed to land is equivalent to livery of seisin, and transfers the legal estate and possession to the grantee. If the grantor continues to reside thereon, it must, therefore, be under the grantee: Reading v. Weston, 7 Conn. 143; 18 Am. Dec. 89. The delivery of a deed authorizing the exercise of dominion and control over property is equivalent to a delivery of the property itself: Gilmore v. Whitesides, Dud. Eq. 14; 31 Am. Dec. 563. There can be no partial delivery and acceptance of a deed, for the purpose of conveying title to the grantee, and yet so as not to give effect to its conditions, recitals, and limitations: Warren v. Jacksonville, 15 Ill. 236; 58 Am. Dec. 610.

Delivery, Generally-By Whom and to Whom.-A deed delivered without the consent of the grantor is of no effect: Felix v. Patrick, 145 U. S. 317, 329. If a husband and wife, being in possession of a homestead, the title to which is in the wife, join in a deed of gift, but with the intention of not delivering it until after the death of both, and the wife, during the life of her husband, delivers such deed without his knowledge and consent, it does not affect the husband's rights in the homestead: Meeks v. Stillwell (Ohio), May 26, 1896. But in

Texas it is held that the delivery of a deed properly executed by a hus band and wife, and acknowledged by them in accordance with the statute, will, if such delivery is made by the husband, pass the wife's title, although the delivery is made in violation of the wife's instructions, if the grantee has no notice of such instructions, but that it would be otherwise if the grantee has notice that such a delivery would be unauthorized: Edwards v. Dismukes, 53 Tex. 605. An unauthorized delivery of a deed is a void act, and the deed will pass no title: Burnap v. Sharpsteen, 149 Ill. 225. A deed delivered by an agent should be pleaded as the deed of the principal; not that it was delivered as the deed of the agent: Church v. Gilman, 15 Wend. 656; 30 Am. Dec. 82. A stranger, without authority, by an instrument under seal, cannot complete and deliver an incomplete deed in the absence of the party who executed it: Ingram v. Little, 14 Ga. 173; 58 Am. Dec. 549: An unauthorized delivery of a deed may, however, be ratified by the grantor: Van Amringe v. Morton, 4 Whart. 382; 34 Am. Dec. 517. A personal delivery of a deed is unnecessary; it may be made by another by the grantor's appointment or authority precedent, or by his subsequent assent or agreement: Duncan v. Hodges, 4 McCord, 239; 17 Am. Dec. 734.

An actual, manual delivery to the grantee in person is not necessary: Church v. Gilman, 15 Wend. 656; 30 Am. Dec. 82; Cooper v. Jackson, 4 Wis. 537; Shirley v. Ayres, 14 Ohio, 307; 45 Am. Dec. 546; Walker v. Walker, 42 Ill. 311; 89 Am. Dec. 445; Weber v. Christen, 121 Ill. 91; 2 Am. St. Rep. 68; Issitt v. Dewey, 47 Neb. 196. It may even be made to a stranger for the grantee's use: Cooper v. Jackson, 4 Wis. 537; Chess v. Chess, 1 Pen. & W. 32; 21 Am. Dec. 350; Church v. Gilman, 15 Wend, 656; 30 Am. Dec. 82, and other cases cited infra, where this matter is discussed. The question of delivery is one of intention, and the delivery is complete when there is an intention manifested on the part of the grantor to make the instrument his deed; and he does some act putting it beyond his power to revoke: Martin v. Flaherty, 13 Mont. 96; 40 Am. St. Rep. 415; Compton v. White, 86 Mich. 33; Fisher v. Hall, 41 N. Y. 416, 423; Davis v. Garrett, 91 Tenn. 147; Walker v. Walker, 42 Ill. 311; 89 Am. Dec. 445; McDonald v. Minnick, 147 Ill, 651; Wilson v. Wilson, 158 Ill. 567; 49 Am. St. Rep. 176; Weber v. Christen, 121 Ill. 91; 2 Am. St. Rep. 68; Ruckman v. Ruckman, 32 N. J. Eq. 259. Although there may not have been any manual delivery of a deed, or anything said, in terms, about its delivery, yet the fact of delivery may be found from the acts of the parties preceding, attending, and subsequent to the signing, sealing, and acknowledgment of the instrument: Dukes v. Spangler, 35 Ohio St. 119. If the grantor in a deed intends, when executing it, to be understood as delivering it, that is sufficient. The intention of the party is the controlling element: Walker v. Walker, 42 III. 311; 89 Am. Dec. 445. If nothing further is expected to be done by the beneficiary in a declaration of trust, or the grantee in a deed, to complete the transaction as a whole, a formal sealing and delivery, without an actual delivery to the other party, or to a third person for his use, is sufficient to make the declaration or deed operative immediately, unless something else exists or is done to qualify the delivery: Linton v. Brown, 20 Fed. Rep. 455. The delivery of a deed of gift is sufficient, if, after being prepared by

the express direction of the grantor, it is read over to him by the notary, is signed and acknowledged by him, and is, by his order, and In his presence, given to the husband of one of the grantees, and the grantor thereafter indicates no wish to retract the deed: Hamilton v. Armstrong, 120 Mo. 597.

Even a manual delivery of a deed is ineffective without an intention to deliver the instrument, as the very essence of the delivery of a deed is the intention of the parties: Ashford v. Prewitt, 102 Ala. 264; 48 Am. St. Rep. 37. The mere placing of a deed in the hands of one of the grantees does not necessarily constitute a delivery. There must be an intention on the part of the grantor that the deed shall pass the title at the time, and that he shall lose control of it: Wilson v. Wilson, 158 Ill. 567; 49 Am. St. Rep. 176. Thus, if a party, under a contract for the exchange of lands, makes a manual delivery of his deed with the understanding that he is to receive in exchange a warranty deed, and, immediately upon discovering that he has not received such a deed, demands the return of the deed made by him, there is, within the meaning of the law, no delivery of the deed: McDonald v. Minnick, 147 Ill. 651. So, if the circumstances of a manual delivery of a deed are such as to indicate a conditional, rather than an absolute, delivery, no title passes until the condition is fulfilled; and the character of the delivery must be determined by the acts or words of the parties, or by both: Chick v. Sisson, 95 Mich. 412.

A delivery may be made to another than the grantee upon sufficient authority from the latter: Fisher v. Hall, 41 N. Y. 416, 423; Chess v. Chess, 1 Pen. & W., 32; 21 Am. Dec. 350. It may be delivered to the attorney or agent of the grantee: Rosseau v. Bleau, 131 N. Y. 177; 27 Am. St. Rep. 578; Ashford v. Prewitt, 102 Ala. 264; 48 Am. St. Rep. 37; Blanchard v. Blackstone, 102 Mass. 343. The delivery of a conveyance to an attorney, with instructions to him to deliver it to the grantee, has the effect, when such delivery is made, to divest the title of the grantor, and vest it in the grantee by relation as of the date of the delivery to the attorney: Rosseau v. Bleau, 131 N. Y. 177; 27 Am. St. Rep. 578. A deed delivered to the husband of the grantee, with an intention on the part of the grantor that title should pass, divests the grantor of the title and vests it in the grantee, although the deed was made without the wife's knowledge, and was not delivered to her by her husband, but came into her possession some months afterward: Parker v. Parker, 56 Iowa, 111. The delivery of a deed to one of two joint grantees inures to the benefit of both: Powers v. Minor, 87 Tex. 83. It is a delivery to both: Eshleman v. Henrietta Vineyard Co., 102 Cal. 199. The wife of the grantor may be the third party to whom the grantor delivers a deed for the grantee: Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326. A deed by a grantor to his grantee after the latter's death, is of no effect as a correction of a former deed, if executed without the consent of the grantee's heirs: Bartlett v. Brown, 121 Mo. 353. The delivery of a deed to the real beneficiary of the grant, or the person to whose benefit it will inure, is good, without any delivery to the person named as grantee in the deed: Holcombe v. Richards, 38 Minn. 38. Leaving a deed, properly acknowledged, signed, and sealed, in the possession of the officer who takes the acknowledgment without the

grantor's doing or saying anything to qualify the delivery, is sufficient to vest the title in the grantee, although he is not present; and the grantor cannot, by subsequent instructions, limit the effect of such acts to a mere delivery in escrow: Blight v. Schenck, 10 Pa. St. 285; 51 Am. Dec. 478.

A deed, though signed on Sunday, is valid if delivered on the following Monday: Schwab v. Rigby, 38 Minn. 395. Compare Phillips v. Phillips, 83 Mich. 259. The time of delivery, when material, is a question of fact for the jury to determine: Hall v. Benner, 1 Pen. & W., 402; 21 Am. Dec. 394.

What Constitutes Delivery.-This subject is discussed at some length in the monographic notes to Jones v. Jones, 16 Am. Dec. 39-45, Byars v. Spencer, 40 Am. Rep. 217, and Fain v. Smith, 58 Am. Rep. 289-296, on delivery of deeds, where the English and earlier American cases are discussed. The simplest mode of delivering a deed is a manual transfer of it by the grantor to the grantee, with the intent of transferring the title to the property and of relinquishing all control over the instrument; but the delivery may be effected without actually passing the writing from the grantor to the grantee, as where, while the instrument is in the presence of both parties, the grantor directs the grantee to take possession of it, with intent to transfer the property, and the latter expresses his willingness so to do. No particular formality is required: Weber v. Christen, 121 Ill. 91; 2 Am. St. Rep. 68; Jamison v. Craven, 4 Del. Ch. 311. The question whether a deed has been delivered or not is one of intention; and it may be effected by words without acts, or by acts without words, or by both: Ruckman v. Ruckman, 32 N. J. Eq. 259; Provart v. Harris, 150 Ill. 40; Tyler v. Hall, 106 Mo. 313; 27 Am. St. Rep. 337; Turner v. Carpenter, 83 Mo. 333; Burnap v. Sharpsteen, 149 Ill. 225. "A deed may be delivered by doing something and saying nothing, or by saying something and doing nothing, or it may be by both": Flint v. Phipps, 16 Or. 437; Provart v. Harris, 150 Ill. 40. No particular form of delivery is required. It is enough that by some expression or act, the party executing the instrument puts it into the possession of the other party: Alsop v. Swathel, 7 Conn. 500. The delivery may be constructive, as well as actual. Thus, the delivery of a deed to one partner is a delivery to the partnership: Henry v. Anderson, 77 Ind. 361. So where a deed has been recorded and the grantee has conveyed land as owner under the deed with the concurrence of the grantor, this amounts to a delivery, though the deed was made without the knowledge of the grantee, and was never actually delivered to him: Jackson v. Cleveland, 15 Mich. 94; 90 Am. Dec. 266.

The rule, however, is that a grantor must part with all dominion and control over his deed, in order that it may be considered as delivered: Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326; Provart v. Harris, 150 Ill. 40; Shults v. Shults, 159 Ill. 654; 50 Am. St. Rep. 188; Bovee v. Hinde, 135 Ill. 137; Wilson v. Wilson, 158 Ill. 567; 49 Am. St. Rep. 176; Tyler v. Hall, 106 Mo. 313; 27 Am. St. Rep. 337; Porter v. Woodhouse, 59 Conn. 568; 21 Am. St. Rep. 131; Denis v. Velati, 96 Cal. 223; Turner v. Carpenter, 83 Mo. 333; O'Neal v. Brown, 67 Ga. 707; and that there is no delivery if the deed is retained by the grantor, and he keeps possession of the property: Provart v. Harris, 150 Ill. 40; McElroy v. Hiner, 133 Ill. 156; Cline v. Jones, 111 Ill. 563;