The opinion of the Court was delivered by
Willard, C. J.
The plaintiffs claim partition as tenants in common with the defendants of the premises in suit. The nature of the question is fully stated in the Referee’s report.
The first question to be considered is whether the deed which is claimed to have divested all of the plaintiffs except Jesse Arthur of title in favor of the defendants, Anderson and Meeker, is valid and operative as such. If this deed was duly and completely executed and delivered by William L. and John F. Arthur, and by Mitchell and wife, then all the plaintiffs except Jesse Arthur are barred from demanding partitions, and the only question remaining would be as to Jesse Arthur. It is not disputed that the defendant Anderson had acquired and held at the commencement of this action the title of Cornelius Arthur, one of the original distributees^ but these defendants claim to hold the respective shares of the plaintiffs other than Jesse by the direct terms and operation of the deed in question. The plaintiffs on the other hand deny that the deed was executed and delivered.
The deed was prepared as the deed of all the plaintiffs. It states the fact of a tenancy in common and professes to be the deed of the heirs-at-law and distributees of John W. Arthur, deceased, the ancestor of the plaintiffs. It acknowledges a joint consideration and contains a joint covenant of warranty.
[249]*249In point of fact, it contains the signatures of William L. Arthur and John F. Arthur, and also the names of T. W. Mitchell and Mary L., his wife, but with an erasure made by the last named parties, with a view to withdraw their names from the deed. Jesse Arthur does not execute it. In order to carry out the design of this deed as manifested by its recitals, it should bear the signature of Jesse as well as those of the other plaintiffs.
Is there proof of delivery on the part of Mitchell and wife ? The fact appears that they struck out their names from the deed while retaining it in their possession after signature thereto and proof and acknowledgment thereof. The Referee concludes, as matter of law, that the execution, with proof and- acknowledgment, constitutes conclusive evidence of delivery that cannot be rebutted by parol. This is clearly erroneous. Execution and delivery are two distinct acts, both of which must be performed. Proving the deeds before the proper officers is part of the act of execution. It is therefore virtually holding that complete execution dispenses with not only the proof but the fact of delivery. The authorities on this point will be considered with a subsequent question. Independently of the fact of the proof and acknowledgment of the execution, there is npt sufficient evidence to warrant a finding that there had been actual delivery as it regards Mitchell and wife, and. in fact the Referee did so find. It is not necessary to trace the history of the deed after it left the hands of Mitchell and wife, for it bore on its face evidence of want of assent on their part to be bound, expressed by the erasure of their names.
The fact that the deed ultimately came to the hands of the grantee, by whom it was prepared, is of no significance, for he was entitled to its control in the event that Mitchell and wife refused to sign it.
The question is, then, narrowed down to an inquiry whether there was a complete and effective execution and delivery as it regards William L. and John F. Arthur.
The proposition of law on which this depends is that where a deed or other instrument is not completely executed in accordance with the intentions of the parties as expressed either in the instrument itself or in the agreement or understanding in virtue of which its execution and delivery were called for, manual delivery of the incompletely-executed instrument, even to the party entitled to the delivery of a complete instrument, will not be presumed to have [250]*250intended full and effective delivery unless it appears by proof that the parties actually intended such manual delivery to be full and final.-
A complete and perfect act is necessary for the inception of legal rights, although equity will sometimes take cognizance of incomplete acts and adjust the rights of the parties according to the equity of the case. This principle of law would lead to the conclusion that when the joint act of two or more is called for all must perform, otherwise the act is incomplete both in form and substance.
The authorities fully support this view.
Robertson vs. Evans, 3 S. C., 320: In this case the point was directly decided.
Brackett vs. Barney, 18 N. Y., 333: The question in that case was as to the validity of a bond and mortgage on the ground of usury; but it depended on the further question whether the bond and mortgage were to be considered as delivered, so far as the defendant was concerned, at a certain time. The facts with regard to this delivery were, that by the preliminary understanding defendant’s wife was to join therein. Defendant executed the bond and mortgage and delivered them to plaintiff without any express understanding that such delivery should be regarded as complete without the signature of the wife. It was held that the delivery was not complete for want of the wife’s signature, there being no evidence of any intent on the part of the plaintiffs to waive the signature. The proposition of law already stated will be found fully carried out in this case.
Leaf vs. Gibbs, 19 Eng. C. L. R., 475: In this case the same rule was applied to a note intended to be the joint note of two, but which was signed by but one of the parties, and delivered in that condition to the payee. Tindall, C. J., held that unless it appeared that the defendant had waived the signature of the third person the note would be void as to him. The delivery of the note executed by one to the plaintiff was not treated as evidence of an intent to waive.
Parker vs. Parker, 1 Gray, 409: In this case there was not an actual nominal delivery to the vendee, but the question of what is essential to complete execution is solved in harmony with the cases already mentioned. The absence of a release of dower intended by the parties deprived the execution, otherwise full, of completeness.
[251]*251Overmann vs. Kerr, 17 Iowa, 486: In this ease, relied on by the plaintiffs as in Parker vs. Parker, there was not an actual manual delivery so as to place the deed beyond the control of the vendor, but the same general rules as to complete execution are recognized.
Hagood vs. Harley, 8 Rich., 325: This case is in harmony with the preceding, although the execution was held complete. It was objected to a guardian’s bond with one surety that it was intended to have the signatures of two sureties. The only circumstance pointed out as leading to this conclusion was that the paper as prepared for execution contained two seals opposite to the places for the names of sureties. It was held that as the law did not require more than one surety the merely clerical act of placing two seals on the paper did not indicate ah agreement that it should be signed by two sureties.
Bronson vs. Noyes, 7 Wen., 188: This case carries the doctrine of allowing the actual intent of the parties in the act of delivery to control the force and effect of an instrument to the furthest limit.
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The opinion of the Court was delivered by
Willard, C. J.
The plaintiffs claim partition as tenants in common with the defendants of the premises in suit. The nature of the question is fully stated in the Referee’s report.
The first question to be considered is whether the deed which is claimed to have divested all of the plaintiffs except Jesse Arthur of title in favor of the defendants, Anderson and Meeker, is valid and operative as such. If this deed was duly and completely executed and delivered by William L. and John F. Arthur, and by Mitchell and wife, then all the plaintiffs except Jesse Arthur are barred from demanding partitions, and the only question remaining would be as to Jesse Arthur. It is not disputed that the defendant Anderson had acquired and held at the commencement of this action the title of Cornelius Arthur, one of the original distributees^ but these defendants claim to hold the respective shares of the plaintiffs other than Jesse by the direct terms and operation of the deed in question. The plaintiffs on the other hand deny that the deed was executed and delivered.
The deed was prepared as the deed of all the plaintiffs. It states the fact of a tenancy in common and professes to be the deed of the heirs-at-law and distributees of John W. Arthur, deceased, the ancestor of the plaintiffs. It acknowledges a joint consideration and contains a joint covenant of warranty.
[249]*249In point of fact, it contains the signatures of William L. Arthur and John F. Arthur, and also the names of T. W. Mitchell and Mary L., his wife, but with an erasure made by the last named parties, with a view to withdraw their names from the deed. Jesse Arthur does not execute it. In order to carry out the design of this deed as manifested by its recitals, it should bear the signature of Jesse as well as those of the other plaintiffs.
Is there proof of delivery on the part of Mitchell and wife ? The fact appears that they struck out their names from the deed while retaining it in their possession after signature thereto and proof and acknowledgment thereof. The Referee concludes, as matter of law, that the execution, with proof and- acknowledgment, constitutes conclusive evidence of delivery that cannot be rebutted by parol. This is clearly erroneous. Execution and delivery are two distinct acts, both of which must be performed. Proving the deeds before the proper officers is part of the act of execution. It is therefore virtually holding that complete execution dispenses with not only the proof but the fact of delivery. The authorities on this point will be considered with a subsequent question. Independently of the fact of the proof and acknowledgment of the execution, there is npt sufficient evidence to warrant a finding that there had been actual delivery as it regards Mitchell and wife, and. in fact the Referee did so find. It is not necessary to trace the history of the deed after it left the hands of Mitchell and wife, for it bore on its face evidence of want of assent on their part to be bound, expressed by the erasure of their names.
The fact that the deed ultimately came to the hands of the grantee, by whom it was prepared, is of no significance, for he was entitled to its control in the event that Mitchell and wife refused to sign it.
The question is, then, narrowed down to an inquiry whether there was a complete and effective execution and delivery as it regards William L. and John F. Arthur.
The proposition of law on which this depends is that where a deed or other instrument is not completely executed in accordance with the intentions of the parties as expressed either in the instrument itself or in the agreement or understanding in virtue of which its execution and delivery were called for, manual delivery of the incompletely-executed instrument, even to the party entitled to the delivery of a complete instrument, will not be presumed to have [250]*250intended full and effective delivery unless it appears by proof that the parties actually intended such manual delivery to be full and final.-
A complete and perfect act is necessary for the inception of legal rights, although equity will sometimes take cognizance of incomplete acts and adjust the rights of the parties according to the equity of the case. This principle of law would lead to the conclusion that when the joint act of two or more is called for all must perform, otherwise the act is incomplete both in form and substance.
The authorities fully support this view.
Robertson vs. Evans, 3 S. C., 320: In this case the point was directly decided.
Brackett vs. Barney, 18 N. Y., 333: The question in that case was as to the validity of a bond and mortgage on the ground of usury; but it depended on the further question whether the bond and mortgage were to be considered as delivered, so far as the defendant was concerned, at a certain time. The facts with regard to this delivery were, that by the preliminary understanding defendant’s wife was to join therein. Defendant executed the bond and mortgage and delivered them to plaintiff without any express understanding that such delivery should be regarded as complete without the signature of the wife. It was held that the delivery was not complete for want of the wife’s signature, there being no evidence of any intent on the part of the plaintiffs to waive the signature. The proposition of law already stated will be found fully carried out in this case.
Leaf vs. Gibbs, 19 Eng. C. L. R., 475: In this case the same rule was applied to a note intended to be the joint note of two, but which was signed by but one of the parties, and delivered in that condition to the payee. Tindall, C. J., held that unless it appeared that the defendant had waived the signature of the third person the note would be void as to him. The delivery of the note executed by one to the plaintiff was not treated as evidence of an intent to waive.
Parker vs. Parker, 1 Gray, 409: In this case there was not an actual nominal delivery to the vendee, but the question of what is essential to complete execution is solved in harmony with the cases already mentioned. The absence of a release of dower intended by the parties deprived the execution, otherwise full, of completeness.
[251]*251Overmann vs. Kerr, 17 Iowa, 486: In this ease, relied on by the plaintiffs as in Parker vs. Parker, there was not an actual manual delivery so as to place the deed beyond the control of the vendor, but the same general rules as to complete execution are recognized.
Hagood vs. Harley, 8 Rich., 325: This case is in harmony with the preceding, although the execution was held complete. It was objected to a guardian’s bond with one surety that it was intended to have the signatures of two sureties. The only circumstance pointed out as leading to this conclusion was that the paper as prepared for execution contained two seals opposite to the places for the names of sureties. It was held that as the law did not require more than one surety the merely clerical act of placing two seals on the paper did not indicate ah agreement that it should be signed by two sureties.
Bronson vs. Noyes, 7 Wen., 188: This case carries the doctrine of allowing the actual intent of the parties in the act of delivery to control the force and effect of an instrument to the furthest limit. The instrument was a bail bond, containing nothing to limit its ordinary force and effect, and yet in furtherance of the intent of the parties with reference to delivery, established by extrinsic testimony, the bail bond was held to have an effect much less than that expressed upon its face.
Chateau vs. Sugdam, 21 N. Y., 179: In this case the general doctrine was recognized, but the execution was held complete. It was held that execution by á merely nominal party was not essential to an instrument executed by all having a substantial interest. The question under consideration must be distinguished from that which arises where an instrument is fully executed in form according to the intention of the parties but some condition is intended to be annexed to the delivery. In the former case the question is whether the parties have fully completed and consummated that which they intended, while in the latter case it is whether that which was done by them can have the effect that was intended for it by them. The usual mode of making a conditional delivery is by placing the instrument in escrow, although sometimes it will be held, even in the hands of the direct party in interest, as charged with a condition in the nature of a trust. — Bell vs. Ingeston, 12 Adol. & Ellis, 317. See Fairbanks vs. Metcalf, 8 Mass., 230.
The rules controlling the effect of a conditional delivery do not interfere with those relating to the effect of incomplete execution [252]*252upon delivery; for whether delivery is absolute or conditional, and, when conditioned, whether the instrument is in the hands of a party in interest or a third person as an escrow, the failure of complete execution may be equally alleged in the one case as in the other so as to destroy the delivery, whether conditional or otherwise.
Applying the principles already stated to the deed in question, we find that it calls for a joint covenant of all the parties. This covenant cannot have its intended effect unless all the parties whose signatures were contemplated became parties to it. The deed carries on its face this fact, also in other respects shows that it was intended that all the parties in contemplation should unite in it. Nor does it contain any words expressing the intent to have a several operation as it regards the parties to it.
There is no evidence in the case that the parties have waived the defective execution, and accordingly it must be held inoperative for want of complete execution and delivery.
The next question to be considered is whether the case discloses a contract to convey on the part of the plaintiffs that can be specifically enforced in equity. The defendants place their demand in this regard on two grounds — first, that there was a contract to convey valid under the Statute of Frauds ; and, second, that if invalidated by the Statute of Frauds there was still a part performance of the contract sufficient to take the case out of the Statute of Frauds.
It remains to be considered whether either of the plaintiffs are affected by a contract to convey upon consideration; and, if so, whether such contract is valid within the Statute of Frauds.
As it regards William L. and John F. Arthur, it appears that if any contract was made it was without consideration and merely voluntary, and as such cannot be specifically enforced in equity.
The signatures of William and John to the deed are not competent to prove an agreement to convey, inasmuch as the deed being incomplete it cannot be admitted as proof of a contract to convey. — Parker vs. Parker, 1 Gray, 409.
There is no sufficient proof that Jesse Arthur assented to be bound by any contract to convey the land in question, or that Moore, his agent, entered into any obligation in his behalf. The evidence in this respect is vague and indefinite and far from satisfying the requirements as to proof of this character, even independent of the objection under the Statute of Frauds that such a con[253]*253tract must be completely evidenced in writing. We are satisfied that the evidence fails to show any contract to convey on the part of Jesse. Nor is there any contract to convey made out in evidence on the part of Mitchell and wife. In order to bind Mrs. Mitchell by the contract of her husband, it was necessary to make out affirmatively authority in him to bind her. This was not done. The questions of fact just considered come properly before us, inasmuch as they involve a question of the sufficiency of the evidence as it regards its character and tendency to establish the conclusion derived from it by the Court below. There was nothing from which an intent to contract, as alleged by the defendants, could properly be inferred. It will, under these circumstances, be unnecessary to revise the rulings of the Court below as it regards compliance with the requirements of the Statute of Frauds, there being no sufficient proof of any contract whatever in the case as affecting either of the plaintiffs.
The judgment of the Circuit Court must be set aside and the cause remanded for a decree of partition and account.
McIver, A. J., and Kershaw, acting A. J., concurred.