Hawkes v. Pike , 105 Mass. 560 ( 1870 )

Ames, J.

A deed of real estate, in order to take effect as a conveyance of title, must be delivered by the grantor, and actually or by implication accepted as his own by the grantee. 3 Washb. Heal Prop. (3d ed.) 254. Ho definite or specific formality is prescribed by law, but it must be the concurrent act of two parties. It must appear that the grantor parts with the control and possession of the instrument with the intention that it shall operate immediately as a transfer of title, and that it passes into the hands or is placed at the disposal of the grantee, or of some other person in his behalf. Harrison v. Phillips Academy, 12 Mass. 456. Maynard v. Maynard, 10 Mass. 456. Elmore v. Marks, 39 Verm. 538. Jackson v. Phipps, 12 Johns. 418. The register of deeds may have been the person agreed upon as the agent of the grantee, and in such a case a deed left with him for record is sufficiently delivered. But registration of itself does not operate as a delivery, nor does it supersede the necessity of proof of a delivery. Parker v. Hill, 8 Met. 447. Samson v. Thornton, 3 Met. 275.

In this case, there was no delivery directly to the grantee, who was in California at the date of the deed; and we see nothing in the report that shows a delivery to any person for him. The scrivener who drew up the deed at the grantor’s request had no authority from the absent grantee, and did not undertake to act for or to represent him. He assumed no trust, and came under no responsibility to him. He was not requested to keep the deed for him, or send it to him. He was employed by the grantor only, and all that he was to do, or undertook to do, was in his official capacity of register to record the deed; and the only reason which he gave for not giving it up when called upon was, that the record had been begun but not finished. It was then simply a delivery to the register for the purpose of registration, which is wholly insufficient to pass any title to the grantee. There was no agent to accept the deed; no delivery to give effect to the deed as a conveyance. On the contrary, it appears from the grantor’s testimony, which seems to be uncontradicted, that the delivery which he had in his mind was, to take the deed from the register and send it by mail to his son in California.

The letters, upon which the defendant relies to show that the grantor intended to convey the property to his son, are not at all inconsistent with a total change of mind before that intention was carried into effect. Decree reversed.