Jackson ex dem. Eames v. Phipps , 12 Johns. 418 ( 1815 )

Spencer, J.,

delivered the opinion of the court. The parties both claim, tille, under Josbph Phipps, to the 25 acre tract. The other tract is described as a Gore ; and is included in the mortgage given- by Joseph Phipps to the lessor Of the plaintiff but is not included in the deed from Joseph Phipps to Aaron Phipps. With respect to the piece called the Gore, there can' be no question. The defendant defends as landlord of the premises, and his only pretence to any title to this part of the premises, arises from his having succeeded to the possession under Joseph Phipps. The mortgage to the lessor of the plaintiff comprehending it, and the defendant having no title paramount to the mortgage, there exists no legal defence for this tract.

The date of the deed under which the defendant claims, being prior to the execution of the piortgage under which the plaintiff claims the premises, the former must prevail, if it be well and legally executed.

The objection to it is, that it never was delivered to the grantee, nor to any one, for his use, during his lifetime ; and the facts are, that, in the fall'of 1808, it was agreed, between Joseph and Aaron Phipps, that the former, who was indebted to the latter, should give him a deed of his farm, to secure the debt; that Joseph executed the deed, acknowledged and carried it to the cleric's office, for recording, on the day of its date, without the grantee, or any person on his behalf, being present, or receiving a delivery of the same; that Aaron, the grantee, died in the fall of 1809, and in February, 1810, the defendant received the said deed, as the son, and, probably, heir, of Aaroni

Under these circumstances, the deed must be considered inoperative. It is requisite, in every Well-made deed, that there be a delivery of it. This delivery must be either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing; or it ?may be by both; but bjr One or both of these it must be made; for, otherwise, though it be never so well sealed arid written, yet is the deed of no forces It may be delivered to the party himself, to whom it is made; or to any other person, by sufficient authority from him, or it may be delivered to a stranger, for, and in behalf, and to tM use of him to whom it is made, without authority ; but if it be delivered to a stranger, without any such declaration, unless it be delivered as an escrow, it seems that it is .not a guffkient delivery. (1 Shep. Touch. 57, 58. 2 Black. Com. 307. 4 Viner, 27. s. 52.) . In Jackson, ex dem. M’Crea, v. Dunlap, (1 Johns. Cas. 114.,) it was decided, that it was essential to the legal operation of a deed that. the grantee assents to receive, and that there could be no delivery without an acceptance*

A delivery of a deed, which, we have seen, is essential to its existence and operation, ex vi termini, imports that there be a recipient. It would be absurd to hold that a thing was delivered, when there was no person to receive; and, in this ease, the grantee died without any delivery to him. Without inquiring, therefore, whether the deed was frauduleht, it is,enough that it was never well executed, by delivery.

Judgment for the plaintiff.