Duer v. James

Robinson, J.,

delivered the opinion of the Court.

To constitute a delivery of a deed the grantor must do some act putting it beyond his power to revoke. There can be no delivery, so long as the deed is within his control and subject to his authority. In the language of the Supreme Court, in Younge vs. Guilbeau, 3 Wall., 634,

‘ ‘ The grantor must part with the possession of the deed or the right to return it.”

The delivery need not to be to the grantee, but may he to a third party authorized to receive it, or even to a stranger for the use of the grantee, It is not essential to prove a formal delivery, this may be inferred from the acts of the party without wurds, or from words without acts, or from both combined.

In this case the testimony entirely fails to. prove such a delivery of the paper in question, as to make it operate either as a deed of trust, or as an equitable contract.

It appears, that in April, 1853, Davis and McDonald entered into a written contract with Duer, Norris & Company, to build for them two houses, in which they stipulated among other things, to give security against liens and encumbrances, whenever they should be thereunto required.

During the construction of the houses, security was demanded of Davis, and accordingly on the 14th September, 1854, a deed was prepared in which he conveyed all his property, real and personal, to Henry James and Robert Eareckson, in trust, to hold the same until the first of April, 1855, and from and after that date, to sell the same, or so much as might be necessary to pay all claims for labor and materials done and furnished in the construction of the houses ; the residue, if any, to be paid to Davis, the grantor.

The deed was signed and acknowledged by Davis before a justice of the peace, and left by him with the justice, he saying at the time that James and Eareckson, trustees therein named, would call and sign it, and that would complete the paper. On the next day James and Eareckson being informed by Davis of the execution of the paper, went with him to the office of the justice, and after reading the instrument, they refused to have anything to do with it, saying at the time, that it was altogether a different paper from what Davis had represented it to be. After some consultation between them, Davis agreed to convey the property directly to James and Eareckson, he being indebted to them for materials furnished in the construction of the houses under the written contract, they agreeing at the same time to waive their liens on the houses for the materials thus furnished. A new deed was then prepared, executed and delivered, and the deed of trust, of September 14th, 1854, was destroyed.

From this statement, it is clear there was no such parting with the possession of the deed of September 14th, by Davis, the grantor, as to deprive him of further control and dominion over it. On the contrary, when it was left with the iustice by Davis, all parties interested in its execution, considered it as an incomplete paper, tire counsel for the appellees being of opinion that the affidavits of James and Eareckson were necessary to its validity. Whether the affidavits were essential to its validity, in no manner affects the question of intention on the part of Davis at the time he left it with the justice. He, beyond all doubt, was under the impression that the concurring act of James and Eareckson, was necessary before it could operate as a binding instrument, for he told the justice they would call and sign it, and that would complete the paper. Before that was done Davis looked upon the paper as incomplete, and as such his power and authority over it remained. Entertaining these views the decree below will be affirmed.

(Decided 4th June, 1875.)

Decree affirmed.