Eastman, J.
The question which was found for the plaintiff, and upon which the verdict was rendered, was the delivery of the deed by Mrs. Brown, the defendant’s husband, to Richard F. Fifield. If this deed was not delivered, the demandant was entitled to recover ; and the jury, under the rulings and instrue[470]*470tions of the court, have found that it was not. Were these rulings and instructions correct ?
The first exception taken was to the competency of a daughter of Peter Fifield as a witness. If the deed in controversy was not delivered, the property descended to the seven children of Peter Fifield, of whom the witness was one. The demandant held the title of two of the children, and the exception was that the witness was interested to have a co-tenant obtain possession, and was therefore incompetent. But the interest which she had was not in the result of this suit. The verdict and judgment could not be used either for or against her in any subsequent suit to which she might be a party. Her interest was in the question merely, and it was not therefore that legal interest which disqualifies a witness.
But even if she were incompetent, her testimony upon this question was entirely immaterial, and had no tendency to show either that the deed was or was not delivered. And a verdict will not be set aside for the admission of immaterial evidence, unless the court can see that it must have influenced the jury in their decision. Hamhlett v. Hamhlett, 6 N. H. 333; Clement v. Brooks, 13 N. H. 92; Swamscott Machine Co. v. Walker, 2 Foster 457.
The court, in summing up the evidence to the jury, called their attention to the fact that there was no appearance by the plaintiff when certain depositions were taken, and proceeded to make some comments in relation thereto. This course was excepted to as improper and illegal. We do not, however, think that the verdict can be set aside on account of these observations. The court laid down no rule of law to govern the jury ; the competency of the evidence was not in question, and the court left it to the jury to say what weight should be given to it. It is not the ordinary practice in this State for the court to express opinions in regard to the weight of evidence; Haven v. Richardson, 5 N. H. 126; but it is not irregular for them to make such suggestions in relation to the facts as they may suppose will be useful to the jury, the matter being left to the jury [471]*471for decision. Patterson v. Colebrook, 9 Foster 94; Flanders v. Colby, 8 Foster 34; Rollins v. Varney, 2 Foster 99; Commonwealth v. Child, 10 Pick. 252; 3 Chitty’s Practice 911.
The testimony of Harris as to what Susan Kimball had said relative to her deposition, was admissible. It falls within the principle of showing that a witness has given a different account of a transaction from that testified to. The testimony of Harris had also a tendency to show corruption as well as falsehood; and it was not necessary for the plaintiff to have questioned the witness upon the subject before calling Harris. Titus v. Ash, 4 Foster 319; Tucker v. Welch, 17 Mass. 160; Ware v. Ware, 8 Greenl. 42.
The inventory of Mrs. Brown’s estate returned by the defendant, including those premises, and sworn to by him, was competent. It was his statement under oath that the land was Mrs. Brown’s, and consequently that it was not Fifield’s, whose deed from Mrs. Brown he was attempting to establish. It was open to explanation, and the court did not object to the defendant’s-showing that it was done by the direction of the judge of probate. All that the court excluded was the opinion expressed by the judge of probate as to the title, and that was correctly excluded.
But were the instructions of the court correct in regard to the delivery of the deed ? This is the important question of the case. The court instructed the jury that if the deed was in the hands of the depositary, to be delivered to the grantee, either before or after the death of the grantor, without the grantor’s reserving a control over it, then there was a good delivery. But if the grantor reserved such a full control over the deed during her life, and to the last moment of her life, there was no delivery. If she always had the right to control the destination of the deed, there was not a delivery, but if she at any time relinquished her right in favor of the grantee, there was a delivery ; that the question was, whether she always, until her death, continued to have the right to recall the deed, if she pleased, and not whether she did in fact recall it. The court were requested to [472]*472instruct the jury, that if the deed was to remain in the hands of the depositary during the life of the grantor, subject, however, during that time to be revoked by the grantor, and if not revoked then to be recorded, the deed might be regarded as the deed of the grantor from the time of the delivery to the depositary, if it was not subsequently revoked. These instructions the court declined to give, and gave those which we have stated. The point of difference between the two was this : The court held that in order to make the delivery good, it was essential that the grantor should part with her dominion over the deed. That the time when the grantee was to receive it was not material, whether at or before the decease of the grantor, but that the delivery to the depositary must be without the power of recall in the grantor; while the defendant contended that if the deed was in fact delivered in pursuance of the directions of the grantor, it made no difference that the grantor had reserved the right of recalling the deed at any time.
In Shed v. Shed & al., 3 N. H. 432, where A. made an instrument purporting to convey to his two sons, B. and C., certain tracts of land, with a reservation of the use of the land to himself during his life, and delivered the instrument to D. to be delivered to B. and C. as his deed, after his decease, in case he should not otherwise direct; and A. died without giving any further directions — it was held, that the instrument was to be considered as the deed of A. from the first delivery, and that it might operate as a covenant by A. to stand seized of the land to his own use during life, remainder to B. and C. in fee. Richardson, C. J., in delivering the opinion says: “ In the case now before us, the writing was intended to effect a mere voluntary disposition of the land; and why the grantor might not reserve to himself a right to revoke the writing if he saw fit, does not readily occur to our minds. If he might legally deliver the writing absolutely, to take effect on his decease, we do not see why he might not deliver it conditionally, as an escrow, to take effect upon his decease, in case he did not change his mind and revoke it. Being the absolute owner of the estate, it seems to [473]*473us that he had an incontestible right to deliver the instrument, absolutely or conditionally, according to his will and pleasure.”
The decision in that case would appear to be in point for the defendant, but we do not find any other case in our own Reports, and b *t one or two in others, which go to that extent. On the othej hand, there are many authorities which seem to us to establish a somewhat different rule.
In Parker v.
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Eastman, J.
The question which was found for the plaintiff, and upon which the verdict was rendered, was the delivery of the deed by Mrs. Brown, the defendant’s husband, to Richard F. Fifield. If this deed was not delivered, the demandant was entitled to recover ; and the jury, under the rulings and instrue[470]*470tions of the court, have found that it was not. Were these rulings and instructions correct ?
The first exception taken was to the competency of a daughter of Peter Fifield as a witness. If the deed in controversy was not delivered, the property descended to the seven children of Peter Fifield, of whom the witness was one. The demandant held the title of two of the children, and the exception was that the witness was interested to have a co-tenant obtain possession, and was therefore incompetent. But the interest which she had was not in the result of this suit. The verdict and judgment could not be used either for or against her in any subsequent suit to which she might be a party. Her interest was in the question merely, and it was not therefore that legal interest which disqualifies a witness.
But even if she were incompetent, her testimony upon this question was entirely immaterial, and had no tendency to show either that the deed was or was not delivered. And a verdict will not be set aside for the admission of immaterial evidence, unless the court can see that it must have influenced the jury in their decision. Hamhlett v. Hamhlett, 6 N. H. 333; Clement v. Brooks, 13 N. H. 92; Swamscott Machine Co. v. Walker, 2 Foster 457.
The court, in summing up the evidence to the jury, called their attention to the fact that there was no appearance by the plaintiff when certain depositions were taken, and proceeded to make some comments in relation thereto. This course was excepted to as improper and illegal. We do not, however, think that the verdict can be set aside on account of these observations. The court laid down no rule of law to govern the jury ; the competency of the evidence was not in question, and the court left it to the jury to say what weight should be given to it. It is not the ordinary practice in this State for the court to express opinions in regard to the weight of evidence; Haven v. Richardson, 5 N. H. 126; but it is not irregular for them to make such suggestions in relation to the facts as they may suppose will be useful to the jury, the matter being left to the jury [471]*471for decision. Patterson v. Colebrook, 9 Foster 94; Flanders v. Colby, 8 Foster 34; Rollins v. Varney, 2 Foster 99; Commonwealth v. Child, 10 Pick. 252; 3 Chitty’s Practice 911.
The testimony of Harris as to what Susan Kimball had said relative to her deposition, was admissible. It falls within the principle of showing that a witness has given a different account of a transaction from that testified to. The testimony of Harris had also a tendency to show corruption as well as falsehood; and it was not necessary for the plaintiff to have questioned the witness upon the subject before calling Harris. Titus v. Ash, 4 Foster 319; Tucker v. Welch, 17 Mass. 160; Ware v. Ware, 8 Greenl. 42.
The inventory of Mrs. Brown’s estate returned by the defendant, including those premises, and sworn to by him, was competent. It was his statement under oath that the land was Mrs. Brown’s, and consequently that it was not Fifield’s, whose deed from Mrs. Brown he was attempting to establish. It was open to explanation, and the court did not object to the defendant’s-showing that it was done by the direction of the judge of probate. All that the court excluded was the opinion expressed by the judge of probate as to the title, and that was correctly excluded.
But were the instructions of the court correct in regard to the delivery of the deed ? This is the important question of the case. The court instructed the jury that if the deed was in the hands of the depositary, to be delivered to the grantee, either before or after the death of the grantor, without the grantor’s reserving a control over it, then there was a good delivery. But if the grantor reserved such a full control over the deed during her life, and to the last moment of her life, there was no delivery. If she always had the right to control the destination of the deed, there was not a delivery, but if she at any time relinquished her right in favor of the grantee, there was a delivery ; that the question was, whether she always, until her death, continued to have the right to recall the deed, if she pleased, and not whether she did in fact recall it. The court were requested to [472]*472instruct the jury, that if the deed was to remain in the hands of the depositary during the life of the grantor, subject, however, during that time to be revoked by the grantor, and if not revoked then to be recorded, the deed might be regarded as the deed of the grantor from the time of the delivery to the depositary, if it was not subsequently revoked. These instructions the court declined to give, and gave those which we have stated. The point of difference between the two was this : The court held that in order to make the delivery good, it was essential that the grantor should part with her dominion over the deed. That the time when the grantee was to receive it was not material, whether at or before the decease of the grantor, but that the delivery to the depositary must be without the power of recall in the grantor; while the defendant contended that if the deed was in fact delivered in pursuance of the directions of the grantor, it made no difference that the grantor had reserved the right of recalling the deed at any time.
In Shed v. Shed & al., 3 N. H. 432, where A. made an instrument purporting to convey to his two sons, B. and C., certain tracts of land, with a reservation of the use of the land to himself during his life, and delivered the instrument to D. to be delivered to B. and C. as his deed, after his decease, in case he should not otherwise direct; and A. died without giving any further directions — it was held, that the instrument was to be considered as the deed of A. from the first delivery, and that it might operate as a covenant by A. to stand seized of the land to his own use during life, remainder to B. and C. in fee. Richardson, C. J., in delivering the opinion says: “ In the case now before us, the writing was intended to effect a mere voluntary disposition of the land; and why the grantor might not reserve to himself a right to revoke the writing if he saw fit, does not readily occur to our minds. If he might legally deliver the writing absolutely, to take effect on his decease, we do not see why he might not deliver it conditionally, as an escrow, to take effect upon his decease, in case he did not change his mind and revoke it. Being the absolute owner of the estate, it seems to [473]*473us that he had an incontestible right to deliver the instrument, absolutely or conditionally, according to his will and pleasure.”
The decision in that case would appear to be in point for the defendant, but we do not find any other case in our own Reports, and b *t one or two in others, which go to that extent. On the othej hand, there are many authorities which seem to us to establish a somewhat different rule.
In Parker v. Dustin, 2 Foster 424, a grantor executed a deed and delivered it to a third person, with instructions to deliver it to the grantee upon the grantor’s death. He afterwards told the grantee that he had given him the land, and directed him to take possession of it, which the grantee did, and afterwards remained in possession; and it was held, that it was a question of fact for the jury, upon the evidence, whether the grantor deposited the deed with the third person, to be delivered at his decease, without reserving any control over it during his life; and that the deed should be considered as delivered or not, as the finding of the jury might be on the question of his intention. That is to say, if he intended to reserve a control over the deed, it was no delivery ; but if he did not so intend, it was a delivery.
In Doe v. Knight, 5 Barn. & Cres. 671, the court told the jury that the question was for them to decide whether the delivery to the depositary was, under all the circumstances of the case, a departing with the possession of the deed and of the power and control over it for the benefit of the grantee, and to be delivered to him, either in the lifetime of the grantor or after his death; or whether it was delivered to the depositary, subject to the future control and disposition of the grantor. If for1 the latter purpose, they should find for the defendant. The- point in that case was distinctly put; the defendant was seeking to defeat the deed, and the court held the validity of the deed to depend upon the question, whether the delivery to the depositary was or not subject to the future control of the grantor.
In Commercial Bank v. Reckless, 1 Halstead’s Ch. 430, it was held that, to constitute the delivery of a deed, the grantor must [474]*474part, not only with the possession but with the control of it, and deprive himself of the right to recall it.
In Baldwin v. Maultsby, 5 Iredell 505, it was held that where there has been no delivery in the lifetime of the grantor, a delivery after his death, though at his request, is void.
In Maynard v. Maynard, 10 Mass. 456, the court, in speaking of the deed which was in controversy in that case, and of the grantor, say : “ He probably chose to consider it as revocable at all times by himself, in case of any important change in his family or estate. Whatever may have been his views, however, he retained an authority over it.” It is the retaining of the authority over it that shows the delivery to be incomplete. Jackson v. Phipps, 12 Johns. 421; Jackson v. Dunlap, 1 Johns. Cas. 114; 1 Devereux Eq. 14; C. W. Dudley’s Eq. 14; Hooper v. Ramsbottom, 6 Taunton 12; Habergham v. Vincent, 2 Ves. Jr. 231.
All of these authorities differ essentially from that of Shed v. Shed, and it appears to us that they are founded upon sounder principles.
The delivery of a deed is either absolute or conditional; absolute when it is to the grantee himself or to some person for him; when the grantor parts with all control over it, and has no power to revoke or recall it; conditional, when the delivery is to a third person, to be kept by him until some conditions are to be performed by the grantee. When the delivery is absolute, the estate passes at once to the grantee ; but when conditional, the estate remains in the grantor until the condition is performed and the deed delivered over to the grantee. Strictly speaking, a conditional deed is not a deed, but an escrow, a mere writing, the effect of which is to depend upon the performance of the conditions by the grantee. If they are performed it becomes a deed, otherwise it is a mere nullity. Co. Litt. 36; Cruise, title 32, ch. 2; 2 Black. Com. 307; 4 Kent’s Com. 454; Jackson v. Catlin, 2 Johns. 248; Carr v. Hoxie, 5 Mason 60; Shep. Touch. 57, 58.
By fiction of law an escrow is sometimes made to take effect from the first delivery. The relation back to the first delivery, [475]*475however, is allowed only in eases of necessity, to avoid injury to the operation of the deed from events happening between the first and second delivery. 4 Kent’s Com. 454; Perkins on Conveyancing, sec. 138 3 Coke 30; 3 Black. Com. 43; Frost v. Bechman, 1 Johns. Ch. 297; 5 Co. 84, b.
A deed which is put into the hands of a third person, to be delivered to the grantee on the happening of some future event, but where no conditions are to be performed, is not an escrow or conditional deed. Its delivery is not dependent upon any' condition to be performed, but it is a valid deed from the beginning, and the holder is but a trustee or agent for the grante'e. In such a case the grantor has parted with all control over the deed. Perkins, secs. 143, 144; 6 Mod. 217; Foster v. Mansfield, 3 Met. 412; 4 Kent’s Com. 455; Stillwell v. Hubbard, 20 Wendell 44.
But so long as a deed is within the control and subject to the authority of the grantor, there is no delivery. And whether in the hands of a third person or in thec,desk of the grantor, is immaterial, since in either case he can destroy it at his pleasure. To make the delivery good and effectual, the power of dominion over the deed must be parted with. Until then the instrument passes nothing; it is merely ambulatory, and gives no title. It is nothing more than a will defectively executed, and is void under the statute. Rev. Stat., chap. 156, sec. 6; Habergham v. Vincent, 2 Ves. Jr. 231; Powell on Dev. 13; 1 Rob. on Wills 59; 4 Bro. Ch. 353; Rob. on Frauds 337.
The case of Habergham v. Vincent was that of a deed, to take effect by way of appointment, after the death of the party. The subject was elaborately discussed and fully considered by the Chancellor and Justices Wilson and Buller. In the course of the discussion Buller says: “ A deed must take place upon its execution or not at all. It is not necessary for a deed to convey an immediate interest in possession, but it must take place as passing that interest, to be conveyed at the execution, but a will is quite the reverse.” And, after examining the various authorities upon the point, he adds: “ These cases have [476]*476established that an instrument in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will. The cases for that are both at law and in equity, and in one of them there were express words of immediate grant, and a consideration to support it as a grant; but as upon the whole the intention was that it should have a future operation after death, it was considered as a will.” And the court all held, that the instrument then under consideration, though called a deed, though in form a deed, was in its nature testamentary, and being attested by only two witnesses, could not pass the freehold estate contrary to the provisions of the statute.
Again, delivery of a deed is as essential to pass an estate as the signing, and so long as the grantor retains the legal control of the instrument, the title cannot pass any more than if he had not signed the deed. A deed may be signed by a third person by virtue of a power-of-attomey, duly executed, and so may it be delivered to a third person, to be delivered to the grantee. Eut the authority in such cases must be executed during the life of the grantor, otherwise it “ availeth nothing,” for no man can create an authority which shall survive him. After his decease the right “ is forthwith in the heir.” Litt., sec. 66; Willes 105; Co. Litt. 52, b. There must be a time when the grantor parts with his dominion over the deed, else it can never have been delivered. So long as it is in the hands of a depositary, subject to be recalled by the grantor at any time, the grantee has no right to it, and can acquire none ; and if the grantor dies without parting with his control over the deed, it has not been delivered during his life, and after his decease no one can have the power to deliver it. The depositary must have had such a dominion over the deed during the lifetime of the grantor as the latter could not interfere with, in order to have any control over it after his decease.
We think the instructions of the court below were correct; and that if the grantor, until her death, reserved the right to recall the deed' from the hands of the depositary, there was no delivery.
[477]*477The law of the case is not changed by treating this instrument as a deed of bargain and sale, or by way of covenant to stand seized for uses, as contended by the defendant’s counsel. The statute of uses, 27 Henry VIII., has been adopted in this State, and a freehold estate in futuro maybe thus conveyed. French v. French, 3 N. H. 234; Bell v. Scammon, 15 N. H. 381. This instrument may perhaps be regarded either as a deed of bargain and sale, or as a covenant to stand seized for uses. A bargain and sale requires a pecuniary consideration. 4 Cruise 110; Jackson v. Fiske, 10 Johns. 456; and a conveyance to stand seized for uses requires the consideration of blood or marriage. 4 Cruise 120; 4 Kent’s Com. 493; Rex v. Scammonden, 3 Term 474; Underwood v. Campbell, 14 N. H. 393. This instrument had expressed in it a small pecuniary consideration, and the evidence would seem also to show a sufficient relationship upon which to found a deed to stand seized for uses. But delivery is as essential to the valid operation of an instrument of this kind as to one conveying the estate immediately; and the jury having found that this deed was never delivered, a verdict for the plaintiff followed as a necessary consequence.
If the owner of land desires to convey the same, but not to have his deed take effect until his decease, he can make a reservation of a life estate in the deed; or it may be done by the absolute delivery of the deed to a third person, to be passed to the grantee upon the decease of the grantor ; the holder in such case being a trustee for the grantee. But if he wishes to retain the power of changing the disposition of the property at his pleasure, that can only be properly effected by will. So long as he retains the instrument, whether in the form of a deed or will, in his power, the property is his. ”
The motion in arrest of judgment cannot prevail. The count was sufficient after verdict.
The verdict having been returned for the plaintiff, and the rulings and instructions to which the defendant excepted having been sustained, it becomes unnecessary to consider the exceptions which were taken by the plaintiff, and there must be
Judgment on the verdict.