Shaw v. Hayward , 61 Mass. 170 ( 1851 )

Shaw, C. J.

Upon these facts, if the inclosure from Illinois, so that the deed might arrive in Boston before 1st January, 1845, was the act to be performed, the covenant was not fulfilled ; if it was the delivery to the register in that state, then the defence is sustained. The defendant requested the court to instruct the jury that the conveyance was made when the deed was left with the register, and that that was a delivery to the plaintiff; but the presiding judge so qualified his instructions, that it was left for the jury to determine whether the acts done constituted a legal delivery. The covenant was to convey, and the execution and delivery of a sufficient deed would pass the title. What, then, is a delivery ? - It is that which gives effect to a deed, and transmits the title of the property to be conveyed. It need not be made to the grantee himself; for if an instrument be banded to a third person as a deed, at the request or with the assent of the grantee, it operates as a delivery. The request to the defendant to record the deed, in this case, was a direction as to the mode of delivery. The only purpose to be attained by this was notoriety and the publication of the transfer ; and if the grantor deposited the deed in the registry, to be recorded, at the request, and by the direction of the grantee, this was a technical delivery, and the deed took effect therefrom.

If a parol agreement that the deed should be transmitted to Boston existed, such transmission was not necessary to complete the delivery; that agreement was separate and collateral, and its violation was no breach of this covenant. If it be asked why such an agreement to send the deed to Boston should be made, it may be answered that it is of great importance to the grantee, to have the authentic evidence of title in his own possession, for his greater security.

In the case of Maynard v. Maynard, 10 Mass. 456, the deed was delivered to the subscribing witness, to be carried to the register of deeds by a father, without the knowledge of the son, and without any authority given to the register to give it to the son. Both subsequently occupied the land together, without any act done to divest their joint possession of its equivocal character. The deed was duly recorded, and returned to the witness, who retained it till the son died. The father then took it back, and cancelled it. It was held that, although registered, it did not operate as a deed, for want of delivery.

But if delivered to a third party for the use of the grantee, on a future event, it is a good delivery presently. Wheelwright v. Wheelwright, 2 Mass. 447; Foster v. Mansfield, 3 Met. 412. So, if delivered to the register to be recorded, and then to be given to the grantee, and he assent, it is a good delivery from the time of such assent. Hedge v. Drew, 12 Pick. 141. If the first delivery of the deed to the register, was made by the request or direction of the plaintiff, it was the delivery to give effect to the instrument as a deed, and, speaking technically, no other delivery could be made. Mills v. Gore, 20 Pick. 28.

The verdict must be set aside, and a new trial ordered, unless the plaintiff consents to become nonsuit.