Le Grand, C. J.,
delivered the opinion of this court.
The bill in this case was filed by Clement Hill, for the pur-* pose of having determined, by the proper judicial tribunals, to-whom he was to pay a sum of money due by him on a single-bill, executed in favor of Mrs. Cornelia Lansdale, now deceased. The facts which it is important we should notice? may be thus stated: Mr. Hill, to secure the payment of a sum of money borrowed from Mrs. Lansdale, executed what he' calls his single bill in her favor, payable five years after date.
On the 8th of August 1843, she executed and delivered toiler daughter, Mrs. Cox, wife of John F. Cox, the following paper: “From natural affection for my daughter, Eliza Cox,, and in consideration of one dollar to me paid by her, I do hereby give, grant, sell, assign and make over to her, and toiler heirs and assigns, a certain debt of three thousand, five hundred dollars, due to me by Clement Hill, for money loaned-to him; said debt is now represented by his note, dated 1st November 1841, payable five years after date, with interest,, payable annually, and is endorsed by Mrs. Ann S. Hill, but it may be put in some other form. But I reserve to myself, and to my own use, said interest as it falls due, (or so much there[283]*283of as I may receive,) during my natural life. It being my intention by this writing to secure said sum or debt, with the unpaid interest on the same, to my said daughter, Eliza Cox, and her heirs, at the time of my decease, without reference to my will, or devise of my other property. Washington city, August Sth 1843. Cornelia Lansdale. Witness, W. C. Board - man.” A copy of this assignment was delivered to Mr. Hill, who subsequently, that is to say, on the 1st of November 1847, took up the original evidence of his indebtedness by executing under seal, together with his mother, the said Mrs. Ann S. Hill, an obligation payable to the order of Mrs. Lansdale, live years after date, for the sum of $3500. It appears Mrs. Cox died sometime in the year 1851, and that after her death, Mrs. Lansdale assigned and delivered to her daughter, Mrs. V. Sprigg, the bill of Mr. Hill and his mother. The controversy arises out of these two assignments. It is not denied, that if she was not precluded by the paper signed by her on the 8th of August 1843, Mrs. Lansdale had a perfect right to assign and deliver the bill to Mrs. Sprigg, and, that the latter would be entitled to the fund now due and owing on it by Mr. Hill and his mother.
If the execution and delivery of the paper, dated the 8th of August 1843, constituted a complete and perfect gift, then it was incompetent for Mrs. Lansdale to assign, as she did, the bill to Mrs. Sprigg. The first inquiry therefore is, what was the effect of the paper of the 8th of August 1843? This question suggests another, which is, what was the character of the paper to which the assignment referred? It has not been exhibited in evidence, and the reference to it, in different parts of the record, is under different designations. In the bill of complaint of Mr. Hill, it is described as a single bill, and admitted to be such in the answers of Mr. and Mrs. Sprigg. It, is called a note in the assignment of Mrs. Lansdale, and in the answer of the appellants. We conclude from all the record it was a single bill; that is, had attached to the signature of Mr. Hill a seal. It seems to be but a just inference from all that has been disclosed to us, that such was its character, and, that the parties indifferently designated and mentioned it as a note, and [284]*284as a single bill. It is perfectly apparent, that Mrs. Lansdale was not aware of the distinction between a note and a single bill, for, when she comes to assign the obligation bearing the seal of Mr. Hill and his mother, she, by an endorsement on it, says, “I hereby assign and deliver to my daughter, Y. Sprigg, the within note.” We shall therefore consider it a single bill, as alleged by Mr. Hill, and admitted by Mr. and Mrs. Sprigg.
It has not been contended on the part of the appellant, that it was a gift causa mortis, but that it was a donatio inter vivos. In either case however, in some particulars, the law is the same. Both at law and in equity, delivery is essential to the validity of the gift. A mere promise is not sufficient, for, until the act is complete, there exists the locus penitentice. 2 Kent, 438. But, it is said, there need not be, in all cases, an actual delivery of the thing to the donee; that this can be dispensed with, provided there be any thing done which is equivalent to it. There is, undoubtedly, a class of cases where a trust has been .created by the donor, either in himself, or in another, which makes it unnecessary there should have been a delivery to the donee. Of this kind is the case of Ex-parte Pye vs. Ex-parte Dubost, 18, Vesey, 145. There Lord Eldon held, that although a court of equity will not assist a volunteer, yet if the act be completed the court will act upon it; and also, that although an agreement to transfer stock would not be enforced, yet if the. party declared himself to be the trustee of that stock, it became the property of the cestui que trust without more, and the court would act upon it. In the case now before us, there is no evidence of a delivery to the wife of the appellant, nor to any one else as trustee for her. It is true Mr. Boardman testifies, that he understood and believes the single bill referred to in the paper of the 8th of August 1843, was by Mrs. Lansdale delivered, for the benefit of her daughter, Mrs. Cox, to another daughter, Mrs. Thomas. He moreover says, that Mrs. Thomas, in his presence, admitted to Mrs. Cox, the paper had been delivered to her, and promised to hand it to the latter immediately after the death of their mother. This testimony is but hearsay, the witness not professing to have any personal knowledge of such delivery. Besides, Mrs. Thomas, in the [285]*285most emphatic and unqualified manner denies ever having made any such acknowledgment or promise; and disclaims, with equal emphasis, any knowledge of the existence of the paper up to a comparatively recent period.
There is no evidence that the complainant, Clement Hill, ever consented to become the trustee of Mrs. Cox; and wilh■out his consent, it was not competent to make him so beyond the maturity of his obligation. When due, he had a right to pay it. It was not in the power of Mrs. Lansdale, without his consent, to continue him her debtor until the period of her death, if that should not take place until the maturity of his ■obligation. When it was due he paid it, by giving the obligation of himself and mother. If, therefore, there was any trustee in the case, it was Mrs. Lansdale. We see nothing in the proof to bring us to such a conclusion. The assignment was not made under seal, and although it professes to have been made in consideration of one dollar, as well as from natural affection for her daughter, it is clear from all the testimony, and especially that of Mr. Boardman, natural affection and love constituted the sole consideration.
Although a court of ¿aw may give damages in an action upon an instrument under seal where títere is nothing on the face of it to repel the presumption of valuable consideration, it will only give nominal damages in cases where the presumption is negatived by something appearing on the face of the paper. In such cases, Mr. Atherley observes, at page 144 of his Treatise on Marriage Settlements,
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Le Grand, C. J.,
delivered the opinion of this court.
The bill in this case was filed by Clement Hill, for the pur-* pose of having determined, by the proper judicial tribunals, to-whom he was to pay a sum of money due by him on a single-bill, executed in favor of Mrs. Cornelia Lansdale, now deceased. The facts which it is important we should notice? may be thus stated: Mr. Hill, to secure the payment of a sum of money borrowed from Mrs. Lansdale, executed what he' calls his single bill in her favor, payable five years after date.
On the 8th of August 1843, she executed and delivered toiler daughter, Mrs. Cox, wife of John F. Cox, the following paper: “From natural affection for my daughter, Eliza Cox,, and in consideration of one dollar to me paid by her, I do hereby give, grant, sell, assign and make over to her, and toiler heirs and assigns, a certain debt of three thousand, five hundred dollars, due to me by Clement Hill, for money loaned-to him; said debt is now represented by his note, dated 1st November 1841, payable five years after date, with interest,, payable annually, and is endorsed by Mrs. Ann S. Hill, but it may be put in some other form. But I reserve to myself, and to my own use, said interest as it falls due, (or so much there[283]*283of as I may receive,) during my natural life. It being my intention by this writing to secure said sum or debt, with the unpaid interest on the same, to my said daughter, Eliza Cox, and her heirs, at the time of my decease, without reference to my will, or devise of my other property. Washington city, August Sth 1843. Cornelia Lansdale. Witness, W. C. Board - man.” A copy of this assignment was delivered to Mr. Hill, who subsequently, that is to say, on the 1st of November 1847, took up the original evidence of his indebtedness by executing under seal, together with his mother, the said Mrs. Ann S. Hill, an obligation payable to the order of Mrs. Lansdale, live years after date, for the sum of $3500. It appears Mrs. Cox died sometime in the year 1851, and that after her death, Mrs. Lansdale assigned and delivered to her daughter, Mrs. V. Sprigg, the bill of Mr. Hill and his mother. The controversy arises out of these two assignments. It is not denied, that if she was not precluded by the paper signed by her on the 8th of August 1843, Mrs. Lansdale had a perfect right to assign and deliver the bill to Mrs. Sprigg, and, that the latter would be entitled to the fund now due and owing on it by Mr. Hill and his mother.
If the execution and delivery of the paper, dated the 8th of August 1843, constituted a complete and perfect gift, then it was incompetent for Mrs. Lansdale to assign, as she did, the bill to Mrs. Sprigg. The first inquiry therefore is, what was the effect of the paper of the 8th of August 1843? This question suggests another, which is, what was the character of the paper to which the assignment referred? It has not been exhibited in evidence, and the reference to it, in different parts of the record, is under different designations. In the bill of complaint of Mr. Hill, it is described as a single bill, and admitted to be such in the answers of Mr. and Mrs. Sprigg. It, is called a note in the assignment of Mrs. Lansdale, and in the answer of the appellants. We conclude from all the record it was a single bill; that is, had attached to the signature of Mr. Hill a seal. It seems to be but a just inference from all that has been disclosed to us, that such was its character, and, that the parties indifferently designated and mentioned it as a note, and [284]*284as a single bill. It is perfectly apparent, that Mrs. Lansdale was not aware of the distinction between a note and a single bill, for, when she comes to assign the obligation bearing the seal of Mr. Hill and his mother, she, by an endorsement on it, says, “I hereby assign and deliver to my daughter, Y. Sprigg, the within note.” We shall therefore consider it a single bill, as alleged by Mr. Hill, and admitted by Mr. and Mrs. Sprigg.
It has not been contended on the part of the appellant, that it was a gift causa mortis, but that it was a donatio inter vivos. In either case however, in some particulars, the law is the same. Both at law and in equity, delivery is essential to the validity of the gift. A mere promise is not sufficient, for, until the act is complete, there exists the locus penitentice. 2 Kent, 438. But, it is said, there need not be, in all cases, an actual delivery of the thing to the donee; that this can be dispensed with, provided there be any thing done which is equivalent to it. There is, undoubtedly, a class of cases where a trust has been .created by the donor, either in himself, or in another, which makes it unnecessary there should have been a delivery to the donee. Of this kind is the case of Ex-parte Pye vs. Ex-parte Dubost, 18, Vesey, 145. There Lord Eldon held, that although a court of equity will not assist a volunteer, yet if the act be completed the court will act upon it; and also, that although an agreement to transfer stock would not be enforced, yet if the. party declared himself to be the trustee of that stock, it became the property of the cestui que trust without more, and the court would act upon it. In the case now before us, there is no evidence of a delivery to the wife of the appellant, nor to any one else as trustee for her. It is true Mr. Boardman testifies, that he understood and believes the single bill referred to in the paper of the 8th of August 1843, was by Mrs. Lansdale delivered, for the benefit of her daughter, Mrs. Cox, to another daughter, Mrs. Thomas. He moreover says, that Mrs. Thomas, in his presence, admitted to Mrs. Cox, the paper had been delivered to her, and promised to hand it to the latter immediately after the death of their mother. This testimony is but hearsay, the witness not professing to have any personal knowledge of such delivery. Besides, Mrs. Thomas, in the [285]*285most emphatic and unqualified manner denies ever having made any such acknowledgment or promise; and disclaims, with equal emphasis, any knowledge of the existence of the paper up to a comparatively recent period.
There is no evidence that the complainant, Clement Hill, ever consented to become the trustee of Mrs. Cox; and wilh■out his consent, it was not competent to make him so beyond the maturity of his obligation. When due, he had a right to pay it. It was not in the power of Mrs. Lansdale, without his consent, to continue him her debtor until the period of her death, if that should not take place until the maturity of his ■obligation. When it was due he paid it, by giving the obligation of himself and mother. If, therefore, there was any trustee in the case, it was Mrs. Lansdale. We see nothing in the proof to bring us to such a conclusion. The assignment was not made under seal, and although it professes to have been made in consideration of one dollar, as well as from natural affection for her daughter, it is clear from all the testimony, and especially that of Mr. Boardman, natural affection and love constituted the sole consideration.
Although a court of ¿aw may give damages in an action upon an instrument under seal where títere is nothing on the face of it to repel the presumption of valuable consideration, it will only give nominal damages in cases where the presumption is negatived by something appearing on the face of the paper. In such cases, Mr. Atherley observes, at page 144 of his Treatise on Marriage Settlements, that a court of equity, “will never enforce a specific performance, merely because a court of law would give nominal damages.” But, independently of this, courts of equity regard the substance, and not the mere form of the thing. In the case however before ■us, the alleged assignment in favor of Mrs. Cox, was not under seal, and therefore, the distinction between sealed and parol contracts, which gives to the former stionger presumptions in their favor, does not apply.
It is said the act of 1829, chapter 51, made this a good assignment, the force of which would enable the appellant, as the survivor of his wife, to maintain an action. In this view [286]*286we do not concur. That act only enables the assignee to sue in his own name, it does not alter the nature of the assignment, Jones vs. Hardesty, 10 Gill & John., 419.
We must not be understood as denying the right of a party, by deed of gift, to dispose of bis personal estate, reserving to himself a life interest in its usufruct. Such were the cases of Hope vs. Hutchins, 9 G. & J., 77, and Hannon’s Ex’rs. vs. The State, use of Robey & wife, 9 Gill, 440; see also the case of Caines vs. Marley, 2 Yerger, 582, which in its facts and principles is very like that of Hope vs. Hutchins. In all these cases there were solemn deeds executed and registered with all necessary formality. The case before us is not like unto either of them, for in it there was no publicity nor an adequate consideration, nor a delivery to a third party in trust. But it is supposed the case of Fortescue vs. Barnett, 3 Mylne & Keene, 36, (8 Cond. Chan. Rep., 265,) is a case in point. That was the assignment of a policy of insurance, an instrument not assignable in its nature at law, but by contract; but inasmuch as the practice of the insurance office was stated to be, that upon an assignment the office recognized the assignee, the policy was therefore held to be an assignable instrument. Although the policy in that case was not delivered with the assignment, the court held it to be a good gift. But in the case of Edwards vs. Jones, 1 Mylne & Craig, 226, the lord chancellor, whilst acquiescing in the correctness of the principle on which the case of Fortescue vs. Barnett, was professedly decided, very plainly intimates the conclusion arrived at was not justified by the facts. The case of The New York Life Insurance Company vs. George W. Flack, 3 Md. Rep., 341, also relied upon by the counsel for the appellant, does not sustain them. In that case, by the express language of the policy, it was assignable, provided the company had notice of the assignment within a certain time. Although it does not appear in the printed statement of the case, it does however in the record which we have examined, that the policy was delivered at the same time with the assignment.
In regaiding voluntary settlements it is important to keep constantly in view the party- against whom it is asked they' [287]*287shall be enforced. For although equity will sometimes afford its aid to a ivife or child against the settler’s/¿eir at law, the better opinion is, that it will not, do so against tire settler. Mr. Atherley, in his excellent work on Marriage Settlements, after a full and able analysis of the cases on the subject, says: “I am strongly inclined to think, that as against the settler himself, equity should in no case enforce a voluntary agreement. If a man voluntarily does an impel feet act, it seems to be but reasonable, that the completion of it should be left to his own discretion, and not to enforce a completion where he may have strong reasons for altering his intention. But where he dies, without having indicated any change in his intention, it may be presumed he has made none; and therefore, iu that case, it may be proper, generally speaking, to enforce the agreement against his heir at law.” We regard Mrs. Sprigg as standing in the place of her mother, Mrs. Lansdale, the settler, for if, as we have shown, Mrs. Lansdale had the right to make the assignment and delivery which she did, to her daughter, Mrs. Sprigg, the latter took all the rights of her mother.
On the whole, judging of (he case, as we are bound to do from the circumstances disclosed to us in the record, we are of opinion, that the transaction between Mrs. Cox and her mother cannot be regarded as a sale, but as an intended gift, and as such incomplete, because of the want of delivery to her or some one for herself; and that being a purely voluntary gift, incomplete in itself, a court of equity will not interfere to give it vitality and force. If there were anything in the record showing us that the appellant could produce additional evidence going to establish a trust, nr a delivery, we should remand the cause for that purpose, but we discover none such, and accordingly affirm the decree of the circuit court.
Decree affirmed*