Regan v. Howe , 121 Mass. 424 ( 1877 )

Colt, J.

Treating the deed executed by the petitioner, and left with the scrivener by the agreement of both parties, as an escrow, in accordance with the petitioner’s present claim, still we are of opinion that there was evidence to warrant a jury in finding a delivery sufficient to vest , the title in the grantee Howe, one of the present respondents. The case was tried by the court, with )ut a jury, and the finding was for the respondents.

There was evidence that the conditions, upon which the deed was to be delivered to the grantee, had been fully performed, so that the equitable title to it was in the grantee ; that the scrivener, in discharge of his trust, intending to complete its delivery, gave it to the petitioner herself to carry and deliver to the grantee, and that she took it away declaring that she took it for that purpose. This is enough to constitute a delivery, if subse • quently accepted as a delivery by the grantee. It is not necessary, as between the parties themselves, even when both are present, that the deed should be placed in the actual custody of the grantee, or of his agent. It may remain with the grantor, and it will be good, if there are other acts and declarations sufficient to show an intention to treat it as delivered. The significance of the acts or declarations relied on will be greatly strengthened where the deed is placed in the hands of a third person, by the fact that the conditions upon which the delivery of the deed depends have been fully performed. The destruction or detention of the deed by the grantor, after such delivery, cannot divest the grantee’s estate. The ruling requested was properly refused. Moore v. Hazelton, 9 Allen, 102, 106. Souverbye v. Arden, 1 Johns. Ch. 240. Scrugham v. Wood, 15 Wend. 545. See also Wheelwright v. Wheelwright, 2 Mass. 447, 452; Hatch v. Hatch, 9 Mass. 307; Foster v. Mansfield, 3 Met. 412.

Exceptions overruled.