his children, while evidential of the purpose for which the deed was made to and held by her, have no bearing upon the question as to where, upon an uncontroverted state of facts, the legal title resided. The inference of acceptance arising from lapse of time and the other circumstances adverted to is so strong and so entirely unrebutted that the only conceivable hypothesis at all consistent with the retention of the title by Theodore during the fourteen years that followed his delivery of the deed is that during all of such period such instrument remained in a sort of escrow so that the legal title did not pass under it until the happening of some event or the performance of some condition. Such hypothesis, however aptly it may account for the conduct of the parties, runs directly counter to the imperative rule that a deed cannot be in escrow with its grantee. The soundness of Chief-Justice Beasley's exposition of this subject in Ordinary v. Thatcher, 41 N. J. Law (12 Vr.) 403, has never been questioned in this state. The rule everywhere is that the delivery of a deed to its grantee cannot be in escrow, but is, regardless of such purpose, a good delivery of the deed. 11 Eng. & Am. Encycl. L. 333, “Escrow;" 16 Cyc. 561, “Escrows.”

The stability of all titles to land rests at bottom upon this rule.

The conclusion, therefore, seems to us to be irresistible that from 1889 to 1903 the legal title to Theodore's interest in the farm was in the grantee of his deed, viz., Josephine T. Weaver, the appellant. This conclusion must also have been assumed by the learned vice-chancellor before he could consistently regard Mrs. Weaver in the light of a donor of such interest. For when he says that Mrs. Weaver "was making a gift to her children," and was "in the position of a donor whose gift was completely executed," he was in effect assuming her acceptance of the deed. without which she would have had nothing to donate and could not have held the position of a donor. Excepting as such acceptance is thus implied we cannot adopt the reasoning by which the conclusion is reached that an executed gift resulted from the destruction by Mrs. Weaver of the deed, chiefly from the consideration that there is no express finding of fact that Mrs. Weaver did destroy the deed or any testimony that would sup

port such a finding. The other ground of the decision below, viz., that of the voluntary execution of an unenforceable trust seems to involve the same implication as to the acceptance of the deed. For a trust, whether enforceable or unenforceable, must exist in order to be a trust, and, in order to exist, must be supported by the legal estate which in the present case could have become vested in Mrs. Weaver in no other way than by her acceptance of Theodore's deed. Further than this we cannot go with the court below, not only because it was not proved that Mrs. Weaver destroyed the deed with the object of executing a trust, but also because, in our opinion, the acts that she did were entirely ineffectual for such object. The underlying legal estate essential to the conception of a trust is neither annulled or transferred by the loss of the deed that conveyed it or by withholding such deed from record or by both combined; the title to land, if once vested in a grantee, cannot, in legal contemplation, be revested by the grantee in the grantor or his heirs or transferred to strangers save by an appropriate documentary act.

Fifty years ago Chancellor Green, in the case of Wilson v. Hill, 13 N. J. Eq. (2 Beas.) 143, declared that "the rule of the common law is perfectly well settled that the cancellation of a deed by consent of parties will not devest the grantee or revest in the grantor an estate which has once vested."

How far a court of equity may go in giving effect to the cancellation, destruction or surrender of an unrecorded deed cannot properly or profitably be discussed upon this appeal, where, in the absence of proof of any of these essential acts, nothing but dicta could result.

The question was suggested seventy years ago by Chancellor Pennington's statement in Faulks v. Burns, 2 N. J. Eq. (1 Gr. Ch.) 250, that "the parties to a deed in a case not affecting third persons may, by agreement, cancel it if it be not recorded," and the entire subject, which is one of great interest, is treated in a comprehensive note to the case of Matheson v. Matheson (already cited), as reported in 18 Lawy. Rep. An. (N. S.) 1167.

The learned vice-chancellor, in support of the conclusion reached by him, cites 15 Am. & Eng. Encycl. L. 1169, note 5.

The title in the Encyclopedia is "Implied Trusts," and the text annotated is as follows:

"Though under the statute no trust results in favor of the person by whom the purchase-money was paid still, if the grantee voluntarily executes the trust, such execution is binding upon him, and cannot be recalled."

This text predicates the due execution of a resulting trust, and the cases cited in note 5 in support of it are all cases either of resulting trusts involving actual fraud or of attempts to invoke equitable powers in aid of a fraud, hence neither the text nor the cases throw any light upon what will constitute the due execution of an express trust which is the question sub judice.

Assuming, therefore, but not deciding, that the voluntary destruction by Mrs. Weaver of the unrecorded deed with the intent thereby to execute the parol trust, might afford a foundation for the decree rendered in the court below, it is none the less true that the fact of such destruction must be put in issue and established like any other essential fact. This was not done inasmuch as there was no such allegation in the bill, no adequate proof produced at the trial, no such issue raised or tried out in the court below, and, finally, no such contention made in this court.

Our conclusion on the whole case is that Josephine T. Weaver in 1903 was lawfully seized of her son's estate and interest in the Weaver farm, and that since that time she has not, by any method known to the law, devested herself of such estate. This leads to a reversal of the decree of the court below upon strictly legal grounds, the case being barren of any equities unless the appellant Josephine T. Weaver by her admissions, in the course of litigation or otherwise, has estopped herself from asserting her legal title.

The vice-chancellor failed to discover such an estoppel, and in this we think he was quite right, for the admissions and declarations of the appellant, while evidential against her, lacked the essential element of an estoppel, viz., they did not induce any action or inaction or change of status in the respondents.

The result reached is that the decree of the court of chancery should be reversed to the end that the complainants' bill be dismissed, and the appellant Josephine T. Weaver suffered to proceed with the remedy provided by statute in the case of a lost deed.

For affirmance-None.

For reversal-THE CHIEF-JUSTICE, GARRISON, SWAYZE, REED, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, CONGDON-13.

GEORGE EWALD, respondent,

V.

SOTER STEPHEN ORTYNSKY et al., appellants.

[Submitted July 3d, 1909. Decided November 15th, 1909.]

A defendant who has demurred to a bill in chancery upon grounds going to the whole of the complainant's bill whose demurrer has been sustained on some of the grounds specified, cannot appeal from a subsequent order obtained on his own motion which assumes to sustain the demurrer on those grounds and overrule it on other grounds.

On appeal from a decree of the court of chancery advised by Vice-Chancellor Leaming.

Mr. Herbert Clark Gilson, for the respondent.

Mr. Harry B. Brockhurst, for the appellant.

Ewald v. Ortynsky.

76 Eq.

The opinion of the court was delivered by

SWAYZE, J.

The appellant is the defendant in the case. It demurred to the bill of complaint for numerous causes. Four of these which went to the whole of the bill were held good by the vice-chancellor, and accordingly an order was made on the motion of the appellant allowing the demurrer. Later the appellant applied for a re-argument and obtained an order allowing the demurrer on the four grounds and overruling it on the others, and then appealed upon the ground that the demurrer should have been allowed on all the grounds specified.

Only those who are aggrieved can appeal. Chancery act (P. L. 1902 p. 545 § 111); Coryell v.. Holcombe, 9 N. J. Eq. (1 Stock.) 650; Green v. Blackwell, 32 N. J. Eq. (5 Stew.) 768. The appellant clearly was not aggrieved by the first order, which was wholly in its favor. Nor is it aggrieved by the second order, erroneous though it is; for the effect of sustaining the demurrer on any ground was to sustain it altogether. Illustration may be found in cases where the reasons specified were held insufficient but the demurrer was sustained for a reason alleged ore tenus. Stillwell v. McNeely, 2 N. J. Eq. (1 Gr. Ch.) 305; Barrett v. Doughty, 25 N. J. Eq. (10 C. E. Gr.) 379; Story Eq. Pl. § 464. Although the order is erroneous, it was entered on the motion of the appellant as a substitute for a proper order in his favor. A party cannot appeal from an order procured by himself. Hooper v. Beecher, 109 N. Y. 609; 15 N. E. Rep. 742. To permit him to do so would simply open the door to unnecessary appeals. No better illustration can be found than this very case, since the second order could have had no possible object except to lay the foundation for this appeal.

The appeal is dismissed, with costs.