Delivery to Third Person for Use of Grantee.-The unconditional delivery of a deed to a third person for the use and benefit of the grantee is, when accepted by the grantee, as good a delivery as if it had been made directly to him: Haenni v. Bleisch, 146 Ill. 262; Colyer v. Hyden, 94 Ky. 180; Trask v. Trask, 90 Iowa, 318; 48 Am. St. Rep. 448; Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326; Miller v. Meers, 155 Ill. 284; Morrison v. Kelly, 22 Ill. 610; 74 Am. Dec. 169; Merrills v. Swift, 18 Conn. 257; 46 Am. Dec. 315; Peavey v. Tilton, 18 N. H. 151; 45 Am. Dec. 365; Jackson v. Rowland, 6 Wend. 666; 22 Am. Dec. 557; Chess v. Chess, 1 Pen. &. W. 32; 21 Am. Dec. 350; Buffum v. Green, 5 N. H. 71; 20 Am. Dec. 562; Verplank v. Sterry, 12 Johns. 536; 7 Am. Dec. 348; Bryan v. Wash, 2 Gilm. 557; Cooper v. Jackson, 4 Wis. 537; Marsh v. Austin, 1 Allen, 235; Holcombe v. Richards, 38 Minn. 38; Winterbottom v. Pattison, 152 Ill. 334; even in cases where the deed is made without the grantee's knowledge: Haenni v. Bleisch, 146 Ill. 262; Halluck v. Bush, 2 Root, 26; 1 Am. Dec. 60, and cases cited in note; Bryan v. Wash, 2 Gilm. 557; Lee v. Fletcher, 46 Minn. 49; Sheffield etc. Coal Co. v. McNeill, 87 Ala. 158; note to Jones v. Jones, 16 Am. Dec. 39; Vreeland v. Vreeland, 48 N. J. Eq. 56.

And this is true, although the deed may not have been delivered to, or accepted by, the grantee until after the death of the grantor: Colyer v. Hyden, 94 Ky. 180; Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326, and other cases cited below, where the matter is more specifically treated. A deed to a third person may, of course, be made for the use and benefit of infants, as well as adults: Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326. So, the unconditional delivery of a deed to a third person for the use of a lunatic grantee not under guardianship, followed by circumstances indicating acceptance by the grantee, is a valid delivery: Campbell v. Kuhn, 45 Mich. 513; 40 Am. Rep. 479. In the absence of anything to show a contrary intention, a voluntary deed by a grantor to his nephews and nieces, handed, upon its execution and acknowledgment, to the former's partner or employé, and placed in a safe by him, no control being exercised by the grantor over it for fifteen years, is a good delivery, especially where the grantor, at the same time, made a life lease of the property, to which the deed was made subject, and which expressly recognized the grantees as owners: Miller v. Meers, 155 Ill. 284.

The delivery, however, of a deed to a stranger, to be delivered to the grantee at the direction of the grantor, or with a reservation of a right in him to countermand it, does not pass the title, nor raise a presumption that the delivery is made with that intention. To pass the title, the facts and circumstances attending the transaction must be such as to show that the grantor intended that the deed should be delivered by the custodian to the grantee: Trask v. Trask, 90 Iowa, 318; 48 Am. St. Rep. 446; Shults v. Shults, 159 Ill. 654; 50 Am. St. Rep. 188; Prutsman v. Baker, 30 Wis. 644; 11 Am. Rep. 592.

The acceptance of a deed, delivered to a stranger for the use and benefit of the grantee, makes it operative from the time of delivery: White v. Pollock, 117 Mo. 467; 38 Am. St. Rep. 671; Lady Superior v. McNamara, 3 Barb. Ch. 375; 49 Am. Dec. 184; Peavey v. Tilton, 18 N.

H. 151; 45 Am. Dec. 365; Bryan v. Wash, 2 Gilm. 557; Thompson v. Candor, 60 Ill. 244; Jones v. Swayze, 42 N. J. L. 279; Vreeland v. Vreeland, 48 N. J. Eq. 56; even though the grantee is ignorant of its existence, for the law will presume, if nothing appears to the contrary, that a man will accept what is for his benefit, as we have elsewhere shown: Vreeland v. Vreeland, 48 N. J. Eq. 56. In Kingsbury v. Burnside, 58 Ill. 310, 11 Am. Rep. 67, the deed was held to be operative only from the time the assent was given.

Rights of creditors, however, must be protected. Hence, if a deed is placed in the hands of a third person to be by him delivered to the grantee, it will not be good against an intervening attachment of the land conveyed: Johnson v. Farley, 45 N. H. 505. So, if a deed is delivered to a third person for the use of the grantee, but without his knowledge or assent, his subsequent assent will not defeat the lien of an intervening judgment against the grantor: Hibberd v. Smith, 67 Cal. 547; 56 Am. Rep. 726. So, if one places on record a deed to a party, who has no knowledge of the existence of the deed, and does not authorize or give his assent to the record, there is no such delivery as will give the grantee precedence of a mortgage executed between such a placing of the deed on record and a formal subsequent delivery. A ratification of a grantor's unauthorized delivery can, as a general rule, it is true, be made by the grantee, but not when the effect is to cut out an intervening mortgage for value: Parmelee v. Simpson, 5 Wall, 81.

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Contingency of Death. This subject is discussed in the monographic notes to Wellborn v. Weaver, 63 Am. Dec. 243-246, on deeds to take effect after death of grantor, and to Wilson v. Carrico, 49 Am. St. Rep. 219-222. If a grantor executes a deed in sufficient form, and deposits it with a third person to be delivered to the grantee upon the grantor's death, it is a good and sufficient delivery, where the grantor parted with all control over the instrument, and reserved no right to recall it or to alter any of its provisions, and the grantee, though he had no knowledge of the conveyance, will upon acceptance, after the grantor's death, succeed the title, which vests, by relation, as of the time when the deed was left for delivery with such third person: Hoffmire v. Martin, 29 Or. 240; Trask v. Trask, 90 Iowa, 318; 48 Am. St. Rep. 446; Hathaway v. Payne, 34 N. Y. 92; Ball v. Foreman, 37 Ohio St. 132; Cook v. Patrick, 135 Ill. 499; Marsh v. Austin, 1 Allen, 235; Strough v. Wilder, 119 N. Y. 530; Gish v. Brown, 171 Pa. St. 479; Wall v. Wall, 30 Miss. 91; 64 Am. Dec. 147; Hill v. Hill, 119 Ill. 242; Cummings v. Glass, 162 Pa. St. 241; Winterbottom v. Pattison, 152 Ill. 334; Douglas v. West, 140 Ill. 455; Loveland v. Loveland, 136 Ill. 75; Denzler v. Rieckhoff (Iowa), January 26, 1896; Martin v. Flaherty, 13 Mont. 96; 40 Am. St. Rep. 415; Dimmick v. Dimmick, 95 Cal. 323; Bury v. Young, 98 Cal. 446; 35 Am. St. Rep. 186; Stewart v. Stewart, 5 Conn. 317; Woodward v. Camp. 22 Conn. 457; O'Neal v. Brown, 67 Ga. 707; Stinson v. Anderson, 96 Ill. 373; Crabtree v. Crabtree, 159 Ill. 342; Baker v. Baker, 159 Ill. 394; Squires v. Summers, 85 Ind. 252; Owen v. Williams, 114 Ind. 179; Goodpaster v. Leathers, 123 Ind. 121; Estate of Hoffman v. Hoffman, 81 Iowa, 292; Latham v. Udell, 38 Mich. 238; Taft v. Taft, 59 Mich. 185; 60 Am. Rep. 291; Brown v. Stutson, 100 Mich. 574; 43 Am. St. Rep. 462; Standiford v. Standi

ford, 97 Mo. 231; Williams v. Latham, 113 Mo. 165; Berly v. Taylor, 5 Hill, 577, 586; McCalla v. Bane, 45 Fed. Rep. 828; Wheelright v. Wheelright, 2 Mass. 447; 3 Am. Dec. 66; Belden v. Carter, 4 Day, 66; 4 Am. Dec. 185, and cases cited in the note thereto; Hatch v. Hatch, 9 Mass. 307; 6 Am. Dec. 67; Ruggles v. Lawson, 13 Johns. 285; 7 Am. Dec. 375; note to Jones v. Jones, 16 Am. Dec. 39, 41; Jackson v. Rowland, 6 Wend. 666; 22 Am. Dec. 557; Foster v. Mansfield, 3 Met. 412; 37 Am. Dec. 154; Jaggers v. Estes, 2 Strob. Eq. 343; 49 Am. Dec. 674; Hinson v. Bailey, 73 Iowa, 544; 5 Am. St. Rep. 700; Phillips v. Thomas Lumber Co., 94 Ky. 445; 42 Am. St. Rep. 367. It has been held that the delivery of a deed to a third person, to be delivered to the grantee after the grantor's death, and the delivery thereof by such third person before the grantor's death, in breach of the trust imposed upon him, may be a sufficient delivery to vest title at the death of the grantor: Wallace v. Harris, 32 Mich. 380.

But if the grantor does, either by himself or his agent, retain any control over the deed, or reserves any right to recall it, or to alter any of its provisions, the delivery is not good, and the deed conveys no title: Denis v. Velati, 96 Cal. 223; Stinson v. Anderson, 96 Ill. 373; Cline v. Jones, 111 Ill. 563; Lancaster v. Blaney, 140 Ill. 203; Price v. Hudson, 125 Ill. 284; Hayes v. Boylan, 141 Ill. 400; 33 Am. St. Rep. 326; Reichart v. Wilhelm, 83 Iowa, 510; Colyer v. Hyden, 94 Ky. 180; McGraw v. McGraw, 79 Me. 257; Taft v. Taft, 59 Mich. 185; 60 Am. Rep. 291; Schuffert v. Grote, 88 Mich. 650; 26 Am. St. Rep. 316; Fisher v. Hall, 41 N. Y. 416; Weisinger v. Cock, 67 Miss. 511; 19 Am. St. Rep. 320; Williams v. Schatz, 42 Ohio St. 47; Duraind's Appeal, 116 Pa. St. 93; Peck v. Rees, 7 Utah, 467; McCalla v. Bane, 45 Fed. Rep. 828; Harman v. Harman, 70 Fed. Rep. 894; Jackson v. Dunlap, 1 Johns. Cas. 114; 1 Am. Dec. 100; Wheelright v. Wheelright, 2 Mass. 447; 3 Am. Dec. 66; Baker v. Haskell, 47 N. H. 479; 93 Am. Dec. 455; Prutsman v. Baker, 30 Wis. 644; 11 Am. Rep. 592; Byars v. Spencer, 101 Ill. 429; 40 Am. Rep. 212, and note; Fain v. Smith, 14 Or. 82; 58 Am. Rep. 281, and note; Stone v. French, 37 Kan. 145; 1 Am. St. Rep. 237; Porter v. Woodhouse, 59 Conn. 568; 21 Am. St. Rep. 131; Trask v. Trask, 90 Iowa, 318; 48 Am. St. Rep. 446.

A deed is not delivered, though it is executed in the presence of a witness, if there is no declaration on the part of the grantor that he intends it to take effect at once, and he retains it in his possession during his lifetime, putting it in a chest and bequeathing the chest to the grantee: Parrott v. Avery, 159 Mass. 594; 38 Am. St. Rep. 465. If after executing a deed for the use of a third person, to be delivered upon the grantor's death, the grantor executes a mortgage on the property to another person, this act is equivalent to a withdrawal of the deed, and vitiates the delivery: Stinson v. Anderson, 96 Ill. 373. So, obtaining such a deed after the grantor's death, and having it recorded, where the grantor had its custody and possession until his death, will give no validity to the instrument. There can be no valid delivery after the grantee's death: McElroy v. Hiner, 133 Ill. 156. A deed left by the grantor in a place accessible to the grantee does not constitute a delivery, in the absence of an intention on the part of the grantor to deliver and of the grantee to accept: Tyler v. Hall, 106 Mo. 313; 27 Am. St. Rep. 337; Scott v. Scott, 95 Mo. 300. Com

pare Le Saulnier v. Loew, 53 Wis. 207. Exercising acts of ownership after such deeds are given tends to show that the delivery was not intended to pass title: Shults v. Shults, 159 Ill. 654; 50 Am. St. Rep. 188. If a deed of this kind, from father to son, is inclosed in the same envelope as the father's will, but is never discovered or known to the son until after the father's death, the son, in the meantime, leasing and paying rent on the very land described in the deed, there is no delivery: Miller v. Murfield, 79 Iowa, 64. So, where the grantor hands his deed in an envelope to the grantee, to be deposited by the latter in his box in a bank for safekeeping, but not for the purpose of passing the title, there is no delivery: Bovee v. Hinde, 135 Ill. 137. In such cases, the grantee is merely the agent of the grantor, the act of the grantee being the act of the grantor: Hayes v. Boylan, 141 Ill. 400; 33 Am. St. Rep. 326. If the maker's intention is to fix a time for the title to vest, and he dies without doing so, there is no de. livery: Davis v. Williams, 57 Miss. 843. If a person executes a deed and puts it in the hands of a third person, to be delivered to the grantee upon the grantor's death, such third person holds it as agent of the grantor, and as trustee for the grantee, and the grantor may revoke it at any time: Hale v. Joslin, 134 Mass. 310; Ball v. Foreman, 37 Ohio St. 132, 139; Wheelright v. Wheelright, 2 Mass. 447; 3 Am. Dec. 66. Intervening rights will be protected where deeds have been made to take effect upon the grantor's death: Reichart v. Wilhelm, 83 Iowa, 510; Jones v. Loveless, 99 Ind. 317; Blair v. St. Louis etc. R. R. Co., 24 Fed. Rep. 539; Rosseau v. Bleau, 131 N. Y. 177; 27 Am. St. Rep. 578.

A deed for land will not convey the legal title, unless it is delivered by the grantor in his lifetime: Otto v. Doty, 61 Iowa, 23 Hayes v. Boylan, 141 Ill. 400; 33 Am. St. Rep. 326; Taft v. Taft, 59 Mich. 185; 60 Am. Rep. 291; Wellborn v. Weaver, 17 Ga. 267; 63 Am. Dec. 235; Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326. So long as a deed is within the control, and subject to the dominion and authority of the grantor, there is no delivery, without which there can be no deed. There can be no valid delivery of such a deed after the grantor's death: Lang v. Smith, 37 W. Va. 725. Hence, a delivery through the mail by a third person after the death of the grantor is not sufficient: Otto v. Doty, 61 Iowa, 23. But a delivery by one cotenant after the death of another, where both have signed, is a good and lawful delivery: Holt's Appeal, 98 Pa. St. 257.

But where the grantor has intrusted his deed to another for delivery to the grantee, such delivery may lawfully be made, though the grantor is at that time dead: White v. Pollock, 117 Mo. 467; 38 Am. St. Rep. 671; Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326. The question as to whether a conveyance to take effect after the grantor's death is a deed or a will is the subject of a monographic note to Wilson v. Carrico, 49 Am. St. Rep. 219-222. A conveyance not to take effect until the death of the grantor is an attempt to make a testamentary disposition wihout complying with the statute of wills, and is void: Wilson v. Wilson, 158 III. 567; 49 Am. St. Rep. 176.

Delivery in Escrow.-It is not our purpose to discuss the conditions upon which a deed is placed in escrow, or to show when such condi tions are violated; but simply to state the law as to the first delivery. A written instrument, signed, sealed, and acknowledged by the grant

or, and by him delivered to a third person, to be by such person de livered to the grantee upon the happening of some future event, is an escrow, which takes effect upon the second delivery: Harkreader v. Clayton, 56 Miss. 383; and delivery is as essential to the validity of an escrow as to a deed; the only difference being as to the manner of the delivery: Wellborn v. Weaver, 17 Ga. 267; 63 Am. Dec. 235. The manual delivery of a deed will not be regarded as a full and complete delivery if it is mutually understood at the time, between the grantor and the grantee, that such deed is not to become operative until some future event: Fraser v. Davie, 11 S. C. 56. There cannot be a delivery of a deed in escrow to the grantee. Such a delivery would make the deed an absolute one to the grantee; or it would be vold: Stevenson v. Crapnell, 114 Ill. 19; Braman v. Bingham, 26 N. Y. 491; Weber v. Christen, 121 Ill. 91; 2 Am. St. Rep. 68; Ordinary of New Jersey v. Thatcher, 41 N. J. L. 403; 32 Am. Rep. 225; Worral v. Munn, 5 N. Y. 229; 55 Am. Dec. 330; Hicks v. Goode, 12 Leigh, 479; 37 Am. Dec. 677; Gilbert v. North American Fire Ins. Co., 23 Wend. 43; 35 Am. Dec. 543; Foley v. Cowgill, 5 Blackf. 18; 32 Am. Dec. 49. It may be valid and operative though the condition is not complied with: Miller v. Fletcher, 27 Gratt. 403; 21 Am. Rep. 356. A deed in the hands of a grantee is never treated as an escrow: Weber v. Christen, 121 Ill. 91; 2 Am. St. Rep. 68. A deed may be delivered as an escrow to any person other than the grantee, and does not become a conveyance so long as it remains in that condition, or until the condition is performed upon which it is to take effect: Gaston v. Portland, 16 Or. 255. The delivery of a deed to a third person in escrow is sufficient, if the grantor, by his act of delivery, loses all control over the instrument, and by it the grantee is to become possessed of the estate: Shults v. Shults, 159 Ill. 654; 50 Am. St. Rep. 188. Upon the happening of the court named, the grantee may compel the delivery of the deed to him: Brown v. Stutson, 10 Mich. 574; 43 Am. St. Rep. 462. The question whether a deed is absolute, or is delivered as an escrow, is, generally, a question of fact to be determined by the jury: White v. Bailey, 14 Conn. 271; Clark v. Gifford, 10 Wend. 310.

A DEED is a writing, signed, sealed, and delivered. The seal has been dispensed with, in a number of states, by statute; and in some it has never been adopted: See monographic note to Gant v. Hunsucker, 55 Am. Dec. 412, showing when a deed can be avoided at law for fraud. A deed is valid between the parties without attestation or acknowledgment: Wood v. Chapin, 13 N. Y. 509; 67 Am. Dec. 62. The loss or destruction of a deed, after delivery thereof, does not, of itself, necessarily divest the title of the grantee: Potter v. Adams, 125 Mo. 118; 46 Am. St. Rep. 478, and note; Speer v. Speer, 7 Ind. 178; 63 Am. Dec. 418.