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The opinion of the court was delivered by

jPiERROiNT, Ch. J-.

The first question presented for our consideration is, whether the deed executed by the -orator to the defendant Marks in 1853, of the land in controversy, was delivered so as to become operative as a conveyance of the title.

That a deed does not take effect until it is delivered, either to the grantee or some other person for him, or for his use and benefit, and to be delivered to him, either absolutely or upon the performance of some condition or the happening of some contingency, is an elementary principle, and not questioned.

What amounts to a delivery is a question that has been much discussed, each case standing mainly upon its own peculiar facts ; but all the authorities seem to agree that to constitute a delivery the grantor must part with the custody and control of the instrument, permanently, with the intention of having it take effect as a transfer of the title, and must part with his right to the instrument, as well as with the possession. So long as he retains the control of the deed, he retains the title.

In this case the orator executed the deed of the premises in question to the defendant Marks, without Marks’ knowledge, and without any understanding with him in respect to it, and then took it to the town clerk’s office, and left it with directions to have the town clerk file it, but not to put it upon the record, and retain it until he should have paid Marks what he owed him, and then return it to' him (the orator.) As the town clerk was not at home when the deed was left, *542and the direction not to record the deed not having been delivered to him, he recorded it. The orator subsequently took the deed from the town clerk’s office, and it was among his papers when they were destroyed by fire. Marks never had the deed in his possession and never saw it; he had no knowledge of it until some six or eight months after it was executed. The orator then informed him of it, and at the same time told him it was recorded by mistake. Whether at that time the orator had taken the deed from the town clerk, does not appear.

This we think was not such a delivery of the deed as was necessary to give it effect as a conveyance, transferring the title to Marks.

The leaving of the deed with the town clerk cannot he construed as a delivery to Marks, or a delivery for his use and benefit, as it appears affirmatively that it was not to he delivered to Marks, hut was to he returned to the orator when he should call for it. The deed was always subject to his control from the time it was executed until it was destroyed by fire.

But it is insisted on the part of the defendants that if the deed did not operate to transfer the title to the land to Marks, the orator has so conducted himself in respect to the matter, that he is estopped from now asserting his title to it as against these defendants.

It is apparent from the testimony that the principle object that the orator had in view, and sought to accomplish by executing the deed, and having it filed in the town clerk’s office, was to prevent his creditors attaching the property, and to this end he repeatedly asserted to various persons that Marks owned the land, but to Marks he told the truth about it, he told him the deed was recorded by mistake, but he never told Marks the deed was left at the town clerk’s office for him to take, and never gave him the right to suppose it was left there for any such purpose.

Marks never trusted him for a dollar after he knew the deed was executed, on the strength of it. And when Marks gave the orator a receipt in full he knew all the facts in relation to the deed as well as the orator; he knew it had never been delivered to him, and was bound to know that without a delivery it transferred no title, so that *543so far as Marks is concerned there are no facts in the case that should prevent the orators claiming his right to the land.

As to Bromley, Leach & Co., it does not appear that they had any knowledge whatever of the transaction up to the time they set off the land upon their execution. One of the firm testifies that they trusted Marks because they had heard that he owned a farm in Winhall, but it does not appear that they had ever heard that he owned this farm, or that the orator had deeded a farm to him, or that the orator had said anything to them upon the subject, or that they had heard of anything that the orator had said to others in respect to it. The testimony therefore utterly fails to establish any fact that is necessary to constitute an estoppel of this kind.

As the orator’s bill does not embrace any matter properly relating to the three hundred dollar debt due from the orator to Marks, or the land embraced in the mortgage given to secure that debt, the decree in this case cannot effect either.

The result is the orator is entitled to a decree according to that part of the prayer in his bill in which he prays for a decree that the defendants be perpetually enjoined from setting up any claim to the premises described in the bill under the said deed from the orator to Marks, executed in 1853, or under the levy and set off, on the execution in favor of Bromley, Leach & Co., against the orator, of the same land.

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