The Chancellor.
Several points have been raised respecting the deed mentioned in the pleadings.
1. It is contended, on the part of the plaintiffs, that the deed was perfected by the sealing and delivery, on the 25th of December, 1805, and that the estate then passed and vested in the grantees, for the uses and purposes therein declared.
In my opinion, this allegation is fully and effectually supported by the proof.
The answer of thegrantor, to this point, is, “ that he and Ms wife signed, and, as he believes, sealed the deed, at or about the time it bears date, in the presence of two witnesses; and he thinks it probable, and believes, that he and Ms wife may have used the formal words of delivery.” He says, further, that he had applied to Abraham Skinner to draw the deed, so as not to part with the possession and profits of the lot during his life, and so as that the same should never vest in the plaintiff, his daughter, if she should marry without his consent and approbation; that he supposed the deed was so drawn; and that it remained in his possession and power from the time it was so signed and scaled, until the delivery to Mr. Clinton, in January, 1809.
The first reflection that arises upon this answer is, that it does not aver or pretend that any explanation was given to the witnesses, or to the plaintiff, or others, at the time of the execution of the deed, of the understanding or intentions of the grantor, at to its operation.
It was his duty to have spoken then, and to have declared his intention, if he had any, inconsistent with the. natural [252]*252and necessary result of that solemnity. The general princiP^e of law is, that the formal act of signing, sealing, and delivery, is the perfection and consummation of the deed, and lays with the grantor to prove clearly that the appearances were not consistent with the truth. The presumption is against him, and the task is upon him to destroy that presumption, by clear and positive proof, that there was no delivery, and that it was so understood at the time. If he understood, or supposed, that the deed was drawn conformably to his view's, (as he asserts,) there was no need of any check to a complete and valid delivery, and he must have intended such delivery, as the deed would always have carried within itself the evidence of his intentions. I should conclude, therefore, from the answer alone, that there was a delivery of the deed, in judgment of law, in December, 1805. If there was a mistake in the drawing of the deed, the defendant had not undertaken to show it. He has not examined Skinner, who drew the deed,' and he does not say that he had not perused the deed before he signed it. The presumption is irresistible that he must have known of its contents, and being of competent capacity to do business, he is justly chargeable with that knowledge. The mistake must be clearly and strongly proved, before the court can correct a deed or writing. (1 Ves. 317. 3 Bro. 454. 6 Ves. 333, 334.)
The evidence of the execution of the deed consists of the testimony of .four persons who were present, and three of whom were subscribing witnesses. Bleecker and Hamilton attest to the execution of the deed in the usual way, and that they subscribed to it as witnesses. There was no condition, qualification, orexplanation made. Itwas on a Christmas day, in the bedroom of Mrs .Arden, whereshewas confined by sick- . ness: Bleecker says he understood the purport of the deed, though his recollection is faint as to the circumstances respecting the execution, and he does not remember reading, or hearing it read. Mrs. Braine was also present, and saw [253]*253the deed executed; and she recollects that the grantor read the deed aloud at the time. Mrs. Sterry was also present, * and saw the deed executed, and heard the company congratúlate her and her sister on the present of the deed ; Mrs. Arden also expressed great satisfaction.
These are all the witnesses who were present at the execution of the deed, who have been examined in the cause; and as there was no explanation given, or conditions annexed, contrary to the natural and legal import of the deed, the proof of the due execution of it, so as to pass the estate, must he deemed to be full and absolute. If an act, so authentic, can be impaired by mental reservations, at the time, or by subsequent loose and idle conversations, there would be no safety in ordinary transactions, and no certainty in legal solemnities.
There has been a good deal of examination and inquiry as to the custody of the deed from the time of its execution, until the actual delivery of it to Clinton, in 1809. This inquiry does not appear to me to be very important; for, whatever may have been the fact, as to the custody of it from 1805 to 1809, it cannot affect the operation of the deed, provided it was duly delivered in the first instance, so as to become valid in law. But these inquiries into the subsequent history of the deed, tend rather to confirm than weaken the direct and positive proof of the first and absolute delivery.
We have seen that the defendant alleges, in his answer, that the deed continued in his possession and power. One of the subscribing witnesses (Bleecker) says, that, to the best of his recollection, the deed was not put into the hands of the grantee, but was taken by the grantor. Mrs. Braine' says, that it was delivered, by the defendant, to his wife. This fact is perfectly consistent with Bleecker1 s recollection. Mrs. Sterry says the deed was handed by the defendant to her sister, the plaintiff, and laid by her on the ledge, or projection of the case, or wardrobe, in the room; and she proves that it remained in that open place until after Mrs. [254]*254Ardenos death, which was in August, 1806. That the defendant frequently came into the room for papers, which he kept locked up in the lower part of the case, and once made mention of the careless situation of the deed. Mrs. Braine, who spent a considerable part of her time at the house of the defendant, the summer after Mrs. Ardenos death, proves the same fact about the situation of the deed, and the censure of the defendant upon such carelessness. Mrs. Talbot mentions a circumstance attending a conversation with Mrs: Arden, the summer she died, which corroborates the testimony of the other two witnesses as to the manner in which the deed was kept.
The testimony on the part of the defendant (/. Arden) is not in contradiction with the above history of the deed: Richard D. Arden saw the deed before the death of his mother, in the case or secretary in her bed room, and he says, that the plaintiff and her sister had the keys of the room after their mother’s death, and at her request, and that the deeds remained for a considerable time in the bed room, after his mother’s death, when the defendant took both the deeds, and put them in his desk in his office below, where they had been after they were drawn, and before they were signed. Mr. Clinton states, in his answer, that when the defendant, (J. Arden) delivered the deeds to him, they were enclosed in one envelope, and endorsed, “ Two deeds, viz. one to Louisa, and one to Eliza B. Arden, each for one lot, &c., to Richard D, Arden and De Witt Clinton, in trust, 1805.”
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The Chancellor.
Several points have been raised respecting the deed mentioned in the pleadings.
1. It is contended, on the part of the plaintiffs, that the deed was perfected by the sealing and delivery, on the 25th of December, 1805, and that the estate then passed and vested in the grantees, for the uses and purposes therein declared.
In my opinion, this allegation is fully and effectually supported by the proof.
The answer of thegrantor, to this point, is, “ that he and Ms wife signed, and, as he believes, sealed the deed, at or about the time it bears date, in the presence of two witnesses; and he thinks it probable, and believes, that he and Ms wife may have used the formal words of delivery.” He says, further, that he had applied to Abraham Skinner to draw the deed, so as not to part with the possession and profits of the lot during his life, and so as that the same should never vest in the plaintiff, his daughter, if she should marry without his consent and approbation; that he supposed the deed was so drawn; and that it remained in his possession and power from the time it was so signed and scaled, until the delivery to Mr. Clinton, in January, 1809.
The first reflection that arises upon this answer is, that it does not aver or pretend that any explanation was given to the witnesses, or to the plaintiff, or others, at the time of the execution of the deed, of the understanding or intentions of the grantor, at to its operation.
It was his duty to have spoken then, and to have declared his intention, if he had any, inconsistent with the. natural [252]*252and necessary result of that solemnity. The general princiP^e of law is, that the formal act of signing, sealing, and delivery, is the perfection and consummation of the deed, and lays with the grantor to prove clearly that the appearances were not consistent with the truth. The presumption is against him, and the task is upon him to destroy that presumption, by clear and positive proof, that there was no delivery, and that it was so understood at the time. If he understood, or supposed, that the deed was drawn conformably to his view's, (as he asserts,) there was no need of any check to a complete and valid delivery, and he must have intended such delivery, as the deed would always have carried within itself the evidence of his intentions. I should conclude, therefore, from the answer alone, that there was a delivery of the deed, in judgment of law, in December, 1805. If there was a mistake in the drawing of the deed, the defendant had not undertaken to show it. He has not examined Skinner, who drew the deed,' and he does not say that he had not perused the deed before he signed it. The presumption is irresistible that he must have known of its contents, and being of competent capacity to do business, he is justly chargeable with that knowledge. The mistake must be clearly and strongly proved, before the court can correct a deed or writing. (1 Ves. 317. 3 Bro. 454. 6 Ves. 333, 334.)
The evidence of the execution of the deed consists of the testimony of .four persons who were present, and three of whom were subscribing witnesses. Bleecker and Hamilton attest to the execution of the deed in the usual way, and that they subscribed to it as witnesses. There was no condition, qualification, orexplanation made. Itwas on a Christmas day, in the bedroom of Mrs .Arden, whereshewas confined by sick- . ness: Bleecker says he understood the purport of the deed, though his recollection is faint as to the circumstances respecting the execution, and he does not remember reading, or hearing it read. Mrs. Braine was also present, and saw [253]*253the deed executed; and she recollects that the grantor read the deed aloud at the time. Mrs. Sterry was also present, * and saw the deed executed, and heard the company congratúlate her and her sister on the present of the deed ; Mrs. Arden also expressed great satisfaction.
These are all the witnesses who were present at the execution of the deed, who have been examined in the cause; and as there was no explanation given, or conditions annexed, contrary to the natural and legal import of the deed, the proof of the due execution of it, so as to pass the estate, must he deemed to be full and absolute. If an act, so authentic, can be impaired by mental reservations, at the time, or by subsequent loose and idle conversations, there would be no safety in ordinary transactions, and no certainty in legal solemnities.
There has been a good deal of examination and inquiry as to the custody of the deed from the time of its execution, until the actual delivery of it to Clinton, in 1809. This inquiry does not appear to me to be very important; for, whatever may have been the fact, as to the custody of it from 1805 to 1809, it cannot affect the operation of the deed, provided it was duly delivered in the first instance, so as to become valid in law. But these inquiries into the subsequent history of the deed, tend rather to confirm than weaken the direct and positive proof of the first and absolute delivery.
We have seen that the defendant alleges, in his answer, that the deed continued in his possession and power. One of the subscribing witnesses (Bleecker) says, that, to the best of his recollection, the deed was not put into the hands of the grantee, but was taken by the grantor. Mrs. Braine' says, that it was delivered, by the defendant, to his wife. This fact is perfectly consistent with Bleecker1 s recollection. Mrs. Sterry says the deed was handed by the defendant to her sister, the plaintiff, and laid by her on the ledge, or projection of the case, or wardrobe, in the room; and she proves that it remained in that open place until after Mrs. [254]*254Ardenos death, which was in August, 1806. That the defendant frequently came into the room for papers, which he kept locked up in the lower part of the case, and once made mention of the careless situation of the deed. Mrs. Braine, who spent a considerable part of her time at the house of the defendant, the summer after Mrs. Ardenos death, proves the same fact about the situation of the deed, and the censure of the defendant upon such carelessness. Mrs. Talbot mentions a circumstance attending a conversation with Mrs: Arden, the summer she died, which corroborates the testimony of the other two witnesses as to the manner in which the deed was kept.
The testimony on the part of the defendant (/. Arden) is not in contradiction with the above history of the deed: Richard D. Arden saw the deed before the death of his mother, in the case or secretary in her bed room, and he says, that the plaintiff and her sister had the keys of the room after their mother’s death, and at her request, and that the deeds remained for a considerable time in the bed room, after his mother’s death, when the defendant took both the deeds, and put them in his desk in his office below, where they had been after they were drawn, and before they were signed. Mr. Clinton states, in his answer, that when the defendant, (J. Arden) delivered the deeds to him, they were enclosed in one envelope, and endorsed, “ Two deeds, viz. one to Louisa, and one to Eliza B. Arden, each for one lot, &c., to Richard D, Arden and De Witt Clinton, in trust, 1805.”
The conclusion, from all this testimony, is, that the grantor had not the custody and possession of the deed, until some time after the death of the mother of the-plaintiff; but that the deed was in the actual possession of the plaintiff, or of her mother, as her agent and bailee. I am perfectly satisfied of the truth of this conclusion.
If we recur to the adjudged cases, and to the acknowrledged rales of law on this subject, they will be found in [255]*255favour of the valid operation of this deed, whether the actual delivery was to the plain tiff or to her mother. , This is much stronger, and attended with more circumstances of a due delivery, than Shelton's case. (Cro. Eliz. 7.) In that case, the deed was sealed in the presence of the grantee and others, and was read, but not delivered; nor did the grantee take it, but it was left behind in the same place ; and yet, in the opinion of all the justices, it was a good grant, for the parties came together for that purpose, and performed all that was requisite for perfecting it, except an actual delivery; being left behind, and not countermanded, it was held to be a delivery in law. In the ancient authorities, and at a time when the execution of deeds was subjected to great technical formality and strictness, it was admitted, that if ^."execute a deed to B., and deliver it to C., though he does not say to the use of B., yet it is a good delivery to B., if he accepts of it, and it shall be intended that C. took the deed for him as his servant. (Paston, J., Year Book, 3 H. 6. 27. A. and Anon, cited in 13 Viner, 23. K. pl. 12. A.) The case of Taw v. Bury, (2 Dy. 167. b.) is a strong determination on this point: A. delivered a deed to B., to deliver over to C., as his deed ; B., did so, and C. refused to accept the deed, and it was, accordingly, left with him by B. It was held to be the deed of A., and enuring to the benefit of C., by the first delivery, and before any actual delivery over to the party ; and that the subsequent refusal of the party could not undo it as a deed from the beginning. To the same purpose is Alford and Lea^s case, in 2 Leon. 110.
It is not to be understood that mere formal words of delivery will, in all cases, bind the party, and render the deed absolute. If it be declared, or agreed, at the time of execution, that the deeds is not to pass out of the possession of the grantor, until certain conditions are complied with, the deed will not operate until certain conditions are fulfilled. This has been so ruled at law, in the cases of Jackson v. Dunlap, and of the Derby Canal Company v. Wilmol, (l Johns. [256]*256Cas. 114. 9 East, 360.,) and there is much good sense and equity in the decision. But if there he no such agreement or intention made known at the time, and both parties are . and the usual formalities of execution take place, and the contract is, to all appearance, consummated, and the deed is left in the power of the grantee, or in the custody of his particular friend, without special instructions, there is no case to be found in law or equity, in which such a delivery is not held binding.
A voluntary settlement, fairly made, is always binding in equity upon 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 decidedly in favour of its validity, unless there be other circumstances, beside the mere fact of his retaining it, to show it was not intended to be absolute: This will appear from an examination of a few of the strong- . est cases on each side of the question.
In Naldred v. Gilham, (1 P. Wms. 577.,) the aunt made a voluntary settlement upon her nephew, then an infant of only four years old, and both parts of the deed were kept in her own possession, ahd, some years afterwards, she made a different settlement on another nephew. The circumstances attending the execution of the deed do not appear, but Lord Macclesfield refused to establish the first settlement, and concluded, not only from the fact of her keeping the custody of both parts of the deed, but from several other circumstances, that it was a case of surprise and imposition in making the first settlement absolute without power of revocation; and in a case which I shall presently mention, Lord Hardwicke said, that this decision was not applicable to every case, but was dependent upon particular circumstances. In Cotton v. King, (2 P. Wms. 358.,) the mother made a voluntary settlement, in trust for her children, and delivered the duplicate deeds into the hands of her attorney and agent, “ with a strict charge that he should not part with them;” and no [257]*257other person was privy to the transaction, and Lord Chan. King held the settlement not binding. Again, in Ward v. Lant, (Prec. in Ch. 182.,) the father executed a voluntary bond to his daughter, without any condition, and payable immediately; but he always kept it by him, and it was proved to have been his intention that no use should be made of it, and that it was only to protect him from taxes, and it was, accordingly, set aside.
It is easy to perceive that there is no analogy between these cases and the present; and yet they are, perhaps, as strong as any to be met with in favour of the failure of the settlement. There are other cases which show, affirmatively, that the mere retention of the deed by the grantor, is not sufficient to defeat it.
In Clavering v. Clavering, (2 Vern. 473.,) a voluntary deed of settlement, in trust, made in 1684, always kept by the grantor in his custody, and never published, and found, after his death, among his papers, was held to^control a subsequent settlement, in 1690. The Lord Keeper said, that though the first settlement was always in the grantor’s custody, that did not give him a power to resume the estate $ and he referred to Lady Hudson’s case, where a father, having taken displeasure at his son, made an additional jointure on his wife, but kept it in his power; and being after-wards reconciled to his son, cancelled the additional jointure, and died; and his wife was allowed, after his death, to recover on the cancelled deed. The decree of the Lord Keeper was, afterwards, affirmed in the house of lords. (1 Bro. P. C. 122.) The decision in Boughton v. Boughton, (1 Atk, 625.,) was to the same effect, and Lord Hardmickc made it, with the case of Naldred v. Gilham full in his mind. He held, that a voluntary deed, formal as to its execution, and without a power of revocation, and kept by the grantor uncancelled, was not to be defeated by a subsequent will. He went still further, in the case of Johnson v. Smith, (1 Ves. 314.) The father, in that case, assigned all his [258]*258bonds, and other securities, to his natural daughter; but the deed was never delivered to her, but put, by him, among his own waitings, and he continued to deal with the securities . as his own. He afterwards executed a bond to the daughter ; and the Chancellor, after his death, put her to her election, between the deed of assignment and the bond.
I am accordingly of opinion, that the deed in question was duly executed, in December, 1805, so as to pass the estate; and that it was not, and could not be, defeated by any subsequent acts or declarations of the grantor. A voluntary settlement, without power of revocation, cannot be revoked. (Villers v. Beaumont, 1 Vern. 100. Bale v. Newton, 1 Vern. 464.) It becomes, then, unnecessary to examine and decide on the force and effect of such a delivery as that made to Clinton, in 1809. If a deed be duly executed, in the first instance, so as to take effect, any subsequent delivery is null and void. (Co. Lit. 48. b.)
The plaintiffs ought to be let into the possession, and the defendant, James Arden, to account for the rents and profits, from the time of the marriage of the plaintiff with Servant, the 22d of January, 1809, when she ceased to be supported in the family of the defendant; and let a reference be made to a master for that purpose ; and all other questions are, in the mean time, reserved.
The following decree was thereupon entered:
" That the deed of conveyance from the defendant, James Arden, and Eliza, his then wife, to the' defendants, De Witt Clinton and Richard D. Arden, bearing date the 25th of November, 1805, mentioned and set forth in the pleadings and proofs in this cause, was duly executed and delivered by James Arden, and Eliza, his then wife, on the 25th of December, 1805, so as to pass the estate and interest in the messuage and premises therein described, to the defendants, Be Witt Clinton and Richard D. 'Arden, and to vest the same in. them, to the uses, and upon the trusts, therein [259]*259mentioned ; and the deed of conveyance is hereby declared valid and effectual, in the law, accordingly. And it is further ordered, adjudged, and decreed, that the plaintiffs, Saint Martin Souverbye, and Eliza Bouquet, his wife, in right of. Eliza Bouquet, be forthwith let into the possession of the premises mentioned and described in the deed of conveyance from the defendants, James Arden, and Eliza, his then wife, to the defendants, De Witt Clinton and Richard D» Arden, bearing date the 25th of November, 1805, and into the perception of the rents and profits thereof, in arrear, and unpaid, and hereafter to accrue and become payable, or that De Witt Clinton and Richard D. Arden be immediately let into the possession thereof, as trustees, upon the trusts, and to the uses, in the deed expressed and declared, of and concerning the same. And in case De Wilt Clinton and Richard D. Arden, or the survivor of them, shall take possession of the premises, they, or the survivor of them, shall receive and take the rents and profits thereof, in arrear and unpaid, and which shall hereafter accrue, and be* come payable, in trust for, and pay over the same, from time to time, to Saint Martin Souverbye, and Eliza Bouquet, his wife, in right of Eliza Bouquet, during their joint-lives, and to Eliza Bouquet, during her life, if she shall survive Saint Martin Souverbye, her husband $ or they, DeWitt Clinton and Richard D. Arden, and the survivor of them, shall permit Saint Martin Souverbye, and Eliza Bouquet, his wife, in right of Eliza Bouquet, to take the rents and profits during their joint lives; and that Eliza Bouquet is to take the same, during her life, if she shall survive her husband ; and after the death of Eliza Bouquet, one of the plaintiffs, the rents and profits of the premises shall be received, paid, and applied, according to the uses and trusts in the before-mentioned deed of conveyance, bearing date the 25 th of November, 1805, limited and declared. And that the trustees, or the survivor of them, and any other person then claiming an interest therein, un[260]*260der the deed of conveyance, shall be at liberty to apply to this court, for its direction in that behalf. And it is further ordered, adjudged, and decreed, that the defendants, De Witt Clinton and Richard D. Arden, shall, within twenty days after notice of this decree, cause the deed of conveyance to be acknowledged, or proved, and recorded, according to law, for the greater safety of the title of the plaintiffs in this cause to the premises therein contained, and all others who may become interested therein. And it is .further ordered, adjudged, and decreed, that the plaintiffs, during their joint lives, and Eliza Bouquet, after the death of Saint Martin Souverbye, her husband, if she shall survive him, shall he at liberty to use the names of the trustees, or the survivor of them, and to have the use of the deed of conveyance, for the purpose of prosecuting at law, or taking any reasonable measures to obtain the possession of the premises, and for receiving the rents and profits thereof, according to their, and her rights to the same, as herein-before declared and adjudged. And it is further ordered, adjudged, and decreed, that the defendant, James Arden, account with the plaintiffs in this cause, for the rents and profits 'of the premises, from the 23d of January, 1809, and that it be referred to one of the masters in chancery to take the account accordingly; and that, in taking the account, the master charge James Arden with the rents of the premises received, or which, without wilful default, might have been received for the same; and that the master make all just allowances to James Arden, for taxes and repairs ; and that the master who shall take the account, report thereon, to the court, with all convenient speed. And it is further ordered, that the question of costs, and all further directions, be reserved until the report shall come in.”