Delivery

The transfer of a deed from the grantor to the grantee, or some person acting in his behalf, in such a manner as to deprive the grantor of his right to recall it at his option. An absolute delivery is one which is complete upon the actual transfer of the instrument from the possession of the grantor. A conditional delivery is one which passes the deed from the possession of the grantor, but is not to be completed by possession in the grantee, or a third person as his agent, until the happening of a speci Oed event A delivery in this manner is an escrow (q. v.). No particular form is required to effect a delivery. It may be by acts merely, by words merely, or by both combined; but in all cases an intention that it shall be a delivery must exist; Com. Dig. Fait (A); 6 Sim. 31; Lindsay v. Lindsay, 11 Vt. 621; Arrison v. Harmstead, 2 Pa. 191; Verplank v. Sterry, 12 Johns. (N. Y.) 536, 7 Am. Dec. 348;.Mills v. Gore, 20 Pick. (.Mass.) 28; Hughes v. Hasten, 4 J. J. Marsh. (Ky.) 572, 20 Am. Dec. 230; Hayes v. Boylan, 141 111.

400, 30 N. E. 1041, 33 Am. St. Rep. 326; Nazro v. Ware, 38 Minn. 443, 38 N. W. 359; Stefhan v. Lank, 69 Tex. 513, 6 S. W. 623; Flint v. Phippe, 16 Or. 437, 19 Tac. 543.

The unconditional delivery of a deed to a third person for the use of a lunatic grantee, not under guardianship, followed by circumstances indicating acceptance by the grantee, is valid; Campbell v. Knlm, 4f> Mich. 513, 8 N. W. 523, 40 Am. Rep. 479. "Anything which signifies the intention of the grantor to part with his control or dominion over the paper, so that it may become a muniment of title in the grantee, operates as a legal delivery. With respect to the measure of proof required, a difference is recognized in the cases depending upon the character of the deed, whether it. be voluntary or made to give effect to a sale. In the former case the intention to part with the control of the deed is not presumed and a delivery must be proved strictface, the Intention to consummate the conveyance by the delivery of the deed as a muniment of title is inferred from the grantor's parting with the q of it, whether it be to the grantee directly or to some third person — if he part with it without any condition or reservation." Bates, Ch., in Jamison v. Craven,; In the absence of direct evidence, the delivery of a deed will be i from the concurrent acts of the parties recognizing a transfer of title; Gould v. Day. 94 r. S. in;,. 24 L. Ed. 232; Turner v. Warren, 160 Pa. 330, 28 All. 7S1; Williams v. \\ i, 1 is III.

126, 36 X. B. KM.

Bo Ion- as a is within the control and subject to the dominion of the grantor, there is no delivery, without which there can be no i Byars v. Spencer, mi ill.

429, 40 Am. uep. 212; Lang v. Smith.::t W. 7a, 725, 17 S. E. 213.

The possession of a deed by the grantee therein, is prima facie evidence of its delivery; Campbell v. Carruth, 32 Fla. 264, i:; South. 432; Mc Clellan v. Zwingli, 70 Hun 600, 24 X. Y. Supp.::71: Lewis v. Watson, 98 Ala. 479, 13 South. 570, 22 L. R, A. 297, 39 Am. St. Hep. 82. The deed "f a corporation was said to he delivered by a Mixing the corporate seal; Co. Litt. 22, n., ';•;. n.; Cro. Eliz. 107; 2 Rolle, Ahr. Fait (I); L. R 2 II. L. 2! Hi. It may be made by an agent as well the grantor himself; Hatch v. Hatch, 9 307, 6 Am. Dec. 07; Belden v. Carter, 1 Day (Conn.) 66, 4 Am. Dec. 185; 5 B. & C. 071; or to an agent previously appointed: Western R. Corp. v. Babcock. 0 Mete. (M or subsequently recognized; Turner v. Whidden, 22 Me. 121; Shirley's I.< — e v. Ayres, 14 Ohio, 307, 45 Am. Dec. 546; hut a subsequent assent on the part of the grantee will not be presumed: HuliCK v. ScoviL. 4 Oilman (111.) 177; Canning v. 1'inkham, 1 N. H. 353; Church v. oilman. 15 Wei Y.) 656, 30 Am. Dec 82. Where a fat purchasing land has the deed executed in the name of his minor son, the delivery of the deed to the father is sufficient delivery to the son; Hall v. Hall, 107 Mo. 101, 17 S. W. 811. The delivery of a deed to a third person for the grantee's benefit, followed by an assertion of title by the granl I delivery: Ilaeiini v. Bleisch, 1 10 111. 2 N. E. I-"-".: as is also such a delivery where the third person is to he custodian, hut where the deed is not to go into force until after the grantor's death; Campbell v. Morgan, GS Hun 490, ^2 X. Y. Supp. 1001. The cases holding that a deed delivered to a third person to lake effect on the death of the grantor is valid are collected by Mr. Jones in his work on Real Property, vol. 2, § 1234; see also Wittenbrock v. Cass, 110 394, 42 N. E. 867; Benzler v. Rieckhoff, 97 la. 75, 66 N. W. 147; Haeg v. Haeg, 53 Minn. 33, 55 N. W. 1114; Hutton v. Cramer, 10 Ariz. 110, 85 Pac. 483, 103 Pac. 497; and there are authorities which uphold such transfers even though the grantor reserves a right to recall the deed at any time before his death, provided he does not do so; Belden v. Carter, 4 Day (Conn.) 66, 4 Am. Dec. 185; but it is held that these cases are indefensible on principle, and that such a transaction is testamentary; Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797, 41