By the Gourt,
Cole, J.
The correctness of the order of the Circuit Court, dissolving the injunction in this cause, depends very materially upon the question, .as to whether or not, the deed given by Jackson to Upson, was a good and valid deed, at the time of entering up the judgment for the complainants.
The answer discloses a valuable consideration for the deed, and if there was a good delivery, the injunction was properly dissolved. The bill charges that the deed was executed and acknowledged by Jaekson on the 30th of September, 1854, and by him left with the register- of deeds of Kenosha county to be recorded. It is likewise charged in the bill, and insisted upon in argument, that the deed was made without the knowledge or consent of the grantee, Upson, and that as it was never delivered, no interest or title whatever in the lands, passed by it.
Upson in his answer, admits that he was not present when the deed was executed, but says that he saw the same after it was drawn, and that Jackson agreed to execute the deed and deliver it to the register immediately ^ that the conveyance was dated the 25th day of September, 1854, was recorded as is stated in the bill; that it was delivered to the register of deeds to be recorded by said Jackson, and that it was executed in pursuance of an agreement between Jackson and said Upson, had and made prior to said 25th day of September, 1854.
Upson claims that the deed is a good and valid deed, as against the judgment entered up in favor of the complainants on the 2d [550] of October, 1854; and 'whether it is or not, as already remarked, depends solely upon the question of delivery.
It must be admitted that delivery is essential to the validity of a deed; but the question is, what facts are necessary to constitute a good delivery, so as to vest the title.. In Thompson vs. Leach (2 Ventris R. 198), it is stated that if an estate of freehold be conveyed to B. without his knowledge, it vests in him until his disclaimer by record. And it was established by the King’s Bench, in the case of Doe ex dem. Gamons vs. Knight (5 Barn. & Cress. 671), in an elaborate opinion delivered by Bayley, J., “ that when a party to any instrument seals it, and declares in the presence of a witness that he delivers it as his deed, but keeps it in his possession, and there is nothing to qualify that, or to show that the executing party did not intend it to operate immediately, except the keeping the deed in his hands, it is a valid and effectual delivery; and delivery to the party who is to take the deed, or to any person for his use, is not essential; and further, that delivery to a third person for the use of the'party in whose favor the deed was executed, when the grantor parts with all control over the deed, makes the deed effectual from the instant of such delivery, although the person to whom the deed is so delivered be not the agent of the party for whose benefit the deed is made.” That would seem also to be the case even where the delivery was to a third person for the use of the grantee, though such third person were not the agent of the grantee, and the grantee should not receive the deed, nor know of its existence until after the death of the grantor. 4 Kent, 456, note A.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Gourt,
Cole, J.
The correctness of the order of the Circuit Court, dissolving the injunction in this cause, depends very materially upon the question, .as to whether or not, the deed given by Jackson to Upson, was a good and valid deed, at the time of entering up the judgment for the complainants.
The answer discloses a valuable consideration for the deed, and if there was a good delivery, the injunction was properly dissolved. The bill charges that the deed was executed and acknowledged by Jaekson on the 30th of September, 1854, and by him left with the register- of deeds of Kenosha county to be recorded. It is likewise charged in the bill, and insisted upon in argument, that the deed was made without the knowledge or consent of the grantee, Upson, and that as it was never delivered, no interest or title whatever in the lands, passed by it.
Upson in his answer, admits that he was not present when the deed was executed, but says that he saw the same after it was drawn, and that Jackson agreed to execute the deed and deliver it to the register immediately ^ that the conveyance was dated the 25th day of September, 1854, was recorded as is stated in the bill; that it was delivered to the register of deeds to be recorded by said Jackson, and that it was executed in pursuance of an agreement between Jackson and said Upson, had and made prior to said 25th day of September, 1854.
Upson claims that the deed is a good and valid deed, as against the judgment entered up in favor of the complainants on the 2d [550] of October, 1854; and 'whether it is or not, as already remarked, depends solely upon the question of delivery.
It must be admitted that delivery is essential to the validity of a deed; but the question is, what facts are necessary to constitute a good delivery, so as to vest the title.. In Thompson vs. Leach (2 Ventris R. 198), it is stated that if an estate of freehold be conveyed to B. without his knowledge, it vests in him until his disclaimer by record. And it was established by the King’s Bench, in the case of Doe ex dem. Gamons vs. Knight (5 Barn. & Cress. 671), in an elaborate opinion delivered by Bayley, J., “ that when a party to any instrument seals it, and declares in the presence of a witness that he delivers it as his deed, but keeps it in his possession, and there is nothing to qualify that, or to show that the executing party did not intend it to operate immediately, except the keeping the deed in his hands, it is a valid and effectual delivery; and delivery to the party who is to take the deed, or to any person for his use, is not essential; and further, that delivery to a third person for the use of the'party in whose favor the deed was executed, when the grantor parts with all control over the deed, makes the deed effectual from the instant of such delivery, although the person to whom the deed is so delivered be not the agent of the party for whose benefit the deed is made.” That would seem also to be the case even where the delivery was to a third person for the use of the grantee, though such third person were not the agent of the grantee, and the grantee should not receive the deed, nor know of its existence until after the death of the grantor. 4 Kent, 456, note A.
In 1 Shep. Touch. 57, 58, it is stated, “ that a deed may be delivered to any stranger for and in the behalf, and to the use of him to whom it is made, without authority ; but if it be delivered to any stranger without any such declaration, intention or intimation, unless it be in case where it is delivered as an escrow, it seems there is not sufficient delivery.” Justice Spencer-cites the above with approbation in Jackson vs. Phipps (12 J. R. 419), though he says that it is essential to the legal operation of the deed that the grantee assents to receive it, and that there could be no delivery without acceptance. The same point was discussed in Verplank vs. Story (12 J. R. 550), where the same judge re[551] marks that “ a deed is available if delivered to the party grantee, or even to a stranger without' special authority, if intended for the use of the grantee.” And also in giving the opinion of the court in Jackson vs. Goodell (20 J. R. 187), he observes that “ it is necessary to the validity of a deed that there be a grantee willing to accept it. It is a contract, a parting with property by the grantor and an acceptance thereof by the grantee. An acceptance will be presumed from the beneficial nature of the transaction, where the grant is not absolute.” See Belden vs. Carter, 4 Day, 66; Wheelright vs. Wheelright, 2 Mass. 447 ; Hatch vs. Hatch, 9 do. 307. The case of Maynard vs. Maynard (10 Mass. 456), at first view would seem to be in conflict with these authorities, but upon examination will be found to be entirely consistent with them. There it appeared that the grantee had no knowledge that the deed had been executed in his favor. The grantor duly executed and acknowledged the deed and left it with the witness to be taken to the register to be recorded. The witness carried it to the register accordingly, and had it recorded, and received it back. He was then requested by the grantor to keep the deed untilitwas called for. Aftei the death of the grantee, the grantor called for the deed, saying that he. supposed he had a right to do as he pleased with it, and then cut his name and seal from it. In an action to recover possession of the premises, brought against the widow and other tenants, children of the grantee, the court held that there was no delivery of the deed so as to pass the title, and that the tenants could claim no title under it; that the facts of the case left no doubt of the intention of the grantor ultimately' to pass the land to his son, but to keep control over it.until he should be more determined upon the subject; that there was not an absolute delivery of the deed, and that all that was wanting to its complete effect was-but io direct the witness to deliver it to his son after his own decease. Also, in Hedge et al. vs. Brew (12 Pick. R. 141), it was held that a delivery of a deed to the register of deeds by the grantor, for the tise of the grantee, “ to be recorded, and the grantee’s subsequent assent to the same, is equivalent to an actual delivery to the grantee, and the deed will prevail against an attachment by a creditor of the grantor made after such'assent.” The ease of Samson vs. Thornton (3 Met. R. 275), which was cited upon the [552] argument, raised the question as to what facts constituted a delivery of a deed. There the grantor and grantee had agreed about the sale of the land, the latter agreeing to pay $30 a rod. A deed was made, dated May 31, 1833, in which no consideration was inserted. On the 26th of December following, the grantor acknowledged the deed, and sent it to the register to be recorded, without the knowledge of the grantee, who had gone to sea in August previous, and did not return until February, 1836. The land was attached as the property of the grantor in January, 1835. On the grantee’s return from sea, the grantor had become insolvent, and the first question the former asked the latter when they met on his arrival, was, “I am sorry to hear of your misfortunes; what have you done about the lot?” The grantor answered, 'lI presume it is all straight; the deed has been Sent to Taunton to be recorded.” To which the grantee replied, “ I am very glad of it.” The court held that there was no delivery of the deed before the grantee went to sea, and that, therefore, it was incomplete; that sending it to the register to be recorded was the grantor’s own act; and that the grantee had no title as against a creditor of the grantor, who had attached the land before the grantee had accepted the deed.
Shaw, C. J., in giving the opinion of the1 court, says: “ This is distinguishable from the case of Hedge vs. Drew (12 Pick. 141), where the father proposed to the daughter, to execute a deed to her, and to leave it with the register for her use, and she expressed her assent to, and satisfaction with the arrangement. She thereby made the register her agent to -receive the deed.” In Church vs. Silman (15 Wend. 656), the point as to what was' a good delivery, was most directly presented to the court, and it was decided that delivery need not be to the grantee in person ; it is enough if the deed be delivered to a third person for the use of the grantee. Says O. J. Savage, in speaking of conveyances in the nature of testamentary dispositions, and absolute deeds : “ The question in both cases is, whether the grantor has divested himself of the estate ; if he has, that estate vests in the grantee ; and whether he has so divested himself or not, depends upon the delivery. If the delivery is absolutely as his, the grantor’s deed to the stranger for the use of the grantee, the delivery is good ; but if it be delivered to the stranger, subject to [553] the future control of the grantor, no estate passes. When the delivery is absolute, the assent of the grantee is presumed from the fact that the conveyance is beneficial to him.”
The case at bar falls fully within the principle of Hedge vs. Drew. Here the grantee saw the deed after it was drawn, and the parties came to the understanding that the deed should be executed and left with the register to be recorded. There was an absolute divesting by the grantor of his estate in the land, and the deed was delivered to the register, who pro hac vice, may be considered the agent of the grantor to receive it. It is readily distinguishable from the cases where the grantor executes the deed without the knowledge of the grantee. It may be presumed that Upson directed the deed to be left with the register, since that was the final determination of the parties. At all. events it most clearly and unequivocally appears that he assented to this arrangement, and therefore the delivery of the deed to the register must be deemed a good delivery.
This deed then, from Jackson to Upson, having been duly executed, it is evident that at the time the judgment in favor of the complainants was entered up, Jackson had divested himself of his interest in the lands. The answer of Upson must be considered for the purposes of the motion to dissolve the injunction, as strictly true, and that discloses a good and sufficient consideration to support the deed. The injunction, therefore, as to Upson, was properly dissolved.
We do not feel called upon to express any opinion upon the other questions raised upon the argument.
The decree of the Circuit Court is affirmed, with costs.