¶1Chief Justice Booth delivered the opinion of the court.
¶2—The complainants’ case as presented by the bill, seeks to establish this deed as a trust deed, and to have the trusts executed by David Bush, the surviving trustee, or by some other person to be substituted in his place, for the purpose of raising the money charged on the land so conveyed in trust for the benefit of complainants who are children of John C. Jones. The bill prays this relief specifically. The answers were designed to meet this case and no other. They deny the trust. Upon the case thus presented below the chancellor decreed, dismissing the complainants’ bill, upon the ground that no trust such as a court of equity will execute, had been established. On the appeal, the complainants make an entirely new case; abandoning the whole ground taken by them below, deny" ing the trust altogether, and claiming a relief certainly not prayed by the bill, unless it can be granted under the general prayer. On this ground alone we think we should have to affirm the chancellor’s decision, dismissing the bill.
¶32d. But whether this deed was a trust deed or an executed use under the statute, its delivery to the grantees was equally necessary ; and the intention to deliver was equally necessary in the one case as the other. The delivery of a deed is a question of intention, and all the formalities of signing, sealing, acknowledging and even recording are subject to this intention, when made clearly to appear. Now although Isaac Jones executed this deed in the usual manner, acknowledged it, and had it recorded, it is clearly proved that he never intended to make it his deed, except under a certain con*8tingency that never happened. The proof does not leave this in any doubt.
¶4This also is an application to a court of equity, to enforce a deed for a purpose entirely opposed to the intention of the person whose deed it is alledged to be; and to make it a deed, though it clearly appears to us that the party never intended it should be his deed, except in circumstances which never in fact happened.
¶5On both these grounds we affirm the decree of the chancellor, dismissing the complainants’ bill, with costs.
¶6Decree affirmed.