By the Court, Edmonds, J.
The first question that arises, in this case, is whether the deed of November, 1836, was so executed and delivered as to have become operative. It is essential to the validity of a deed of land that it be delivered. But what it is that constitutes a delivery is frequently a difficult question to determine. Sometimes a delivery will be presumed from the facts that the deed was proved or acknowledged, and recorded. It was so presumed in Elsey v. Metcalf, (1 Denio, 324.) But in Stilwell v. Hubbard, (20 Wend. 44,) in Maynard v. Maynard, (10 Mass. Rep. 456, and 3 Metc. 275,) in Jackson v. Phipps, (12 John, 418,) and in Naldred v. Gilliam, (1 P. Wms. 577,) it was held otherwise; because there was other-evidence of an intention that it should not operate. Sometimes a delivery may be inferred from the grantee’s holding possession of the premises granted consistently with the character of the grant; but not when that holding is equally consistent with another and a different grant. (Jackson v. Phipps, 12 John. 418.) Sometimes it may be inferred from the grantee’s having [195]*195possession of the deed; but not where such possession can not fairly be presumed to be with the assent of the grantor. (Carver v. Jackson, 4 Peters, 22. Uniacke v. Giles, 2 Moll. 257.)
A delivery of a deed, to be valid, is such an act of the gram tor touching its execution as deprives him of the power of con* trolling its operation, and confers on the grantee the right toX enforce it, even against the will and pleasure of the grantor.* It need not be delivered to the grantee: it may be delivered to a stranger, for his use; (Doe v. Knight, 5 B. & C. 671;) even though the grantee do not know of its existence until after the grantor’s death. -Nor need it remain in the possession of the stranger or of the grantee. It will be valid, if it remain in the hands of the grantor; provided it be signed, sealed and declared by the grantor, in the presence of the attesting witnesses, to be delivered as his deed, and provided there be nothing to qualify the delivery. (Souverbeye v. Arden, 1 John. Ch. Rep. 240. Doe v. Knight, 5 B. & C. 671.) But the test is, can the grantee at any time add in any way get possession of it ? Can he J enforce it, even against the will of the grantcfr 1 Did the gran-1 tor intend that at all events, and immediately, it should operate ? And could the grantee have filed a bill to take the instrument into safe custody ? (Stilwell v. Hubbard, 20 Wend. 44. Uniacke v. Giles, 2 Molloy, 257.) Was there nothing to qualify the delivery but the grantor’s keeping possession 1 nothing else to show that he did not intend it to operate 1 (Scrugham v. Wood, 15 Wend. 546. Souverbeye v. Arden, 1 John. Ch. R. 256. Brinckerhoof v. Lawrence, 2 Sandf. Ch. R. 406.)
Recollecting that the deed in question is a conveyance of land, and that seizin, once out of the grantor, can not be revested by a mere destruction of the conveyance, or by any act short of a seizin again, or some solemn act substituted for it, and applying to it these tests, we are irresistibly led to the conclusion that this deed was never delivered.
It was barely signed and sealed by the grantor in the presence of witnesses, and even in that act, he, well acquainted with the forms of conveyancing, was careful to leave out of the attesting clause, the usual words to signify that it was “ delivered” [196]*196also. From that time till his death, a period of near four years, he retained the instrument in his own possession, never disclosing its existence either to the grantees named in it or to the persons beneficially interested ; and in the mean time he acted , toward the property as if it was his own, paying taxes and ex- ^ pending money for repairs, and altered his last will, increasing the devise to his daughter to an amount nearly double the value of the property in question. There is nothing in all this tending in any manner to show that the grantees named in the instrument, or the cestuis que trust, could have obtained possession of it—could have enforced it against his will, or could have filed a bill to have taken it out of his possession; or to show that it should operate absolutely. The facts which are invoked in aid of a different construction, viz. his refusal to change the house, and his declaration that he had bought it as a permanent residence for his daughter, are just as consistent " with the continuance of the license, as with the character of ^ this paper;; and there is nothing from which we can justly inkier an intention to deliver, except his signing and sealing. And those acts are just as consistent with an intention that it should not operate in case he altered his will, (as he afterwards did,) as with an intention that it should operate absolutely. A court '"'of equity will disregard a deed as an imperfect instrument, if it be voluntary and never parted with, and executed for a special purpose never acted on, and without the knowledge of the grantee. (Cecil v. Butcher, 2 Jac. & Walk, 573.)
This deed was not delivered until after the death of the grantor, and was therefore inoperative. (Jackson v. Leek, 12 Wend. 107.) It was kept possession of by him, and there is nothing to show an intention that it should operate in presentí ; and therefore1 was inoperative. (Stilwell v. Hubbard, 20 Wend. 44.) "" There was no acceptance by the grantee, which is also essen- ... tial to a valid delivery. (Jackson v. Phipps, 12 John. 418.) And although an acceptance will be presumed from the beneficial nature of the transaction, where the grant is absolute, yet such presumption is not indulged where the grantee derives no benefit, but is subjected to a duty or the performance of a mere [197]*197trust. (Jackson v. Bodle, 20 John. 185.) And there are several circumstances, besides the mere retention of the deed by the grantor, to qualify the delivery. .(Doe v. Knight, 5 B. & C. 571.)
Under these circumstances it is impossible for us to hold that this instrument was duly delivered and operative as a deed of bargain and sale.
It remains to inquire whether it may not be operative as a voluntary settlement. It was not a gift inter vivos; for such gifts have no reference to the future, but go into immediate and absolute effect; and there was no delivery, either actual or symbolical, secundum subjectam materiam. It was not a gift causa mortis ; for it v/as not conditional, like legacies, was not made in contemplation and expectation of death, and there was no delivery, as before mentioned.
If good at all, it was so as a voluntary settlement, which if perfect, will be executed after the death of the grantor; because, between the executor and donee, there is no preferable equity. But then it must have been so final that the party claiming under it could, during the assignor’s life, have filed a bill to take it into safe custody. • (Uniacke v. Giles, supra.) The possession of the instrument must have been obtained by the grantee with the assent of the grantor, and not clandestinely.
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By the Court, Edmonds, J.
The first question that arises, in this case, is whether the deed of November, 1836, was so executed and delivered as to have become operative. It is essential to the validity of a deed of land that it be delivered. But what it is that constitutes a delivery is frequently a difficult question to determine. Sometimes a delivery will be presumed from the facts that the deed was proved or acknowledged, and recorded. It was so presumed in Elsey v. Metcalf, (1 Denio, 324.) But in Stilwell v. Hubbard, (20 Wend. 44,) in Maynard v. Maynard, (10 Mass. Rep. 456, and 3 Metc. 275,) in Jackson v. Phipps, (12 John, 418,) and in Naldred v. Gilliam, (1 P. Wms. 577,) it was held otherwise; because there was other-evidence of an intention that it should not operate. Sometimes a delivery may be inferred from the grantee’s holding possession of the premises granted consistently with the character of the grant; but not when that holding is equally consistent with another and a different grant. (Jackson v. Phipps, 12 John. 418.) Sometimes it may be inferred from the grantee’s having [195]*195possession of the deed; but not where such possession can not fairly be presumed to be with the assent of the grantor. (Carver v. Jackson, 4 Peters, 22. Uniacke v. Giles, 2 Moll. 257.)
A delivery of a deed, to be valid, is such an act of the gram tor touching its execution as deprives him of the power of con* trolling its operation, and confers on the grantee the right toX enforce it, even against the will and pleasure of the grantor.* It need not be delivered to the grantee: it may be delivered to a stranger, for his use; (Doe v. Knight, 5 B. & C. 671;) even though the grantee do not know of its existence until after the grantor’s death. -Nor need it remain in the possession of the stranger or of the grantee. It will be valid, if it remain in the hands of the grantor; provided it be signed, sealed and declared by the grantor, in the presence of the attesting witnesses, to be delivered as his deed, and provided there be nothing to qualify the delivery. (Souverbeye v. Arden, 1 John. Ch. Rep. 240. Doe v. Knight, 5 B. & C. 671.) But the test is, can the grantee at any time add in any way get possession of it ? Can he J enforce it, even against the will of the grantcfr 1 Did the gran-1 tor intend that at all events, and immediately, it should operate ? And could the grantee have filed a bill to take the instrument into safe custody ? (Stilwell v. Hubbard, 20 Wend. 44. Uniacke v. Giles, 2 Molloy, 257.) Was there nothing to qualify the delivery but the grantor’s keeping possession 1 nothing else to show that he did not intend it to operate 1 (Scrugham v. Wood, 15 Wend. 546. Souverbeye v. Arden, 1 John. Ch. R. 256. Brinckerhoof v. Lawrence, 2 Sandf. Ch. R. 406.)
Recollecting that the deed in question is a conveyance of land, and that seizin, once out of the grantor, can not be revested by a mere destruction of the conveyance, or by any act short of a seizin again, or some solemn act substituted for it, and applying to it these tests, we are irresistibly led to the conclusion that this deed was never delivered.
It was barely signed and sealed by the grantor in the presence of witnesses, and even in that act, he, well acquainted with the forms of conveyancing, was careful to leave out of the attesting clause, the usual words to signify that it was “ delivered” [196]*196also. From that time till his death, a period of near four years, he retained the instrument in his own possession, never disclosing its existence either to the grantees named in it or to the persons beneficially interested ; and in the mean time he acted , toward the property as if it was his own, paying taxes and ex- ^ pending money for repairs, and altered his last will, increasing the devise to his daughter to an amount nearly double the value of the property in question. There is nothing in all this tending in any manner to show that the grantees named in the instrument, or the cestuis que trust, could have obtained possession of it—could have enforced it against his will, or could have filed a bill to have taken it out of his possession; or to show that it should operate absolutely. The facts which are invoked in aid of a different construction, viz. his refusal to change the house, and his declaration that he had bought it as a permanent residence for his daughter, are just as consistent " with the continuance of the license, as with the character of ^ this paper;; and there is nothing from which we can justly inkier an intention to deliver, except his signing and sealing. And those acts are just as consistent with an intention that it should not operate in case he altered his will, (as he afterwards did,) as with an intention that it should operate absolutely. A court '"'of equity will disregard a deed as an imperfect instrument, if it be voluntary and never parted with, and executed for a special purpose never acted on, and without the knowledge of the grantee. (Cecil v. Butcher, 2 Jac. & Walk, 573.)
This deed was not delivered until after the death of the grantor, and was therefore inoperative. (Jackson v. Leek, 12 Wend. 107.) It was kept possession of by him, and there is nothing to show an intention that it should operate in presentí ; and therefore1 was inoperative. (Stilwell v. Hubbard, 20 Wend. 44.) "" There was no acceptance by the grantee, which is also essen- ... tial to a valid delivery. (Jackson v. Phipps, 12 John. 418.) And although an acceptance will be presumed from the beneficial nature of the transaction, where the grant is absolute, yet such presumption is not indulged where the grantee derives no benefit, but is subjected to a duty or the performance of a mere [197]*197trust. (Jackson v. Bodle, 20 John. 185.) And there are several circumstances, besides the mere retention of the deed by the grantor, to qualify the delivery. .(Doe v. Knight, 5 B. & C. 571.)
Under these circumstances it is impossible for us to hold that this instrument was duly delivered and operative as a deed of bargain and sale.
It remains to inquire whether it may not be operative as a voluntary settlement. It was not a gift inter vivos; for such gifts have no reference to the future, but go into immediate and absolute effect; and there was no delivery, either actual or symbolical, secundum subjectam materiam. It was not a gift causa mortis ; for it v/as not conditional, like legacies, was not made in contemplation and expectation of death, and there was no delivery, as before mentioned.
If good at all, it was so as a voluntary settlement, which if perfect, will be executed after the death of the grantor; because, between the executor and donee, there is no preferable equity. But then it must have been so final that the party claiming under it could, during the assignor’s life, have filed a bill to take it into safe custody. • (Uniacke v. Giles, supra.) The possession of the instrument must have been obtained by the grantee with the assent of the grantor, and not clandestinely. (Naldred v. Gilham, 1 P. Wms. 577.) To allow force to this deed, will be to give the daughter a double portion, which is not encouraged, unless it is clear that such was the intention. (Johnson v. Smith, 1 Ves. sen. 318.) There are acts here, viz. the keeping the deed in his possession, concealing the knowledge of its existence, and increasing the daughter’s portion by a will subsequently made—which denote an intention contrary to that appearing on the face of the instrument. (Bunu v. Winthrop, 1 John. Ch. R. 336.)
A voluntary settlement fairly made is always binding, in equity, on the grantor, unless there be clear and decisive proof that he never parted nor intended to part with the possession of the deed; and even if he retains it, the weight of authority is in favor of its validity, unless there be circumstances besides [198]*198the mere fact of his retaining it, to show it was not intended to be absolute. (Souverbeye v. Arden, 1 John. Ch. Rep. 256.) Naldred v. Gilham, supra, was a case of that kind. In Cotton v. King, (2 P. Wms. 358,) the deed of settlement was put into the hands of the grantor’s agent with strict charge not to part with it, and no other person was privy to the transaction, and the settlement was held not to be binding. Clavering v. Clavering, (2 Vern. 473;) Boughton v. Boughton, (1 Atk. 625;) Johnson v. Smith, (1 Ven. sen. 314,) and Brinckerhoof v. Lawrence, (2 Sandf. Ch. Rep. 400,) were all cases in which the settlements were held to be good, although the grantor had retained possession of the deed; but they were cases in which there were no circumstances besides such retention to show that the deeds were not intended to be absolute. (5. Barn. & Cress. 571.)
Now in this case, there is something besides the retention of the deed, to show the intention of the grantor. The silence which he maintained in regard to it, and which in the case of Cotton v. King was controlling—diis acts towards the property, and his subsequent will—are all circumstances going to show his intention, or at least showing that- he had no intention it should at all events be absolute, or be so in any contingency which afterwards happened.
This instrument, then, whether it be regarded as a deed of bargain and sale, or as a voluntary settlement, or in its relation to real or personal estate, has only one element of vitality—it was signed and sealed. It was never delivered; for the delivery after death is nothing. (Jackson v. Leek, 12 Wend. 107.) Nor is there any satisfactory evidence that it was intended to operate at the grantor’s death. And it can not be sustained.
The decree of the assistant vice chancellor must be reversed, and the instrument decreed to be delivered up and cancelled.
Decree accordingly.