Mason, J.,
delivered the opinion of this court.
We do not deem it necessary to express any opinion in regard to the effect which the case of Key vs. Davis, 1 Maryland Rep., 32, should have upon the case now' before us. Assuming that the present proceeding is not inconsistent with the principles annunciated in that case, still there are other questions presented in this record, which will enable us to settle the present controversy, independently of the principles involved in the case of Key vs. Davis.
Although the questions which -we are called upon to decide were presented in numerous and various shapes in the court below, yet, upon an attentive examination of the record, wc find, in fact, but three distinct, substantive, propositions, submitted for our adjudication. The first relates to so much of the testimony of .Charles Seward, as seeks to disclose to the jury the declarations of the decedent in regard to the execution by her, of the bill of sale in controversy ; the second is the admissibility of Wm. II. Spedden’s testimony, in so far as he attempts to give his opinion of the mental capacity of the deceased to make a valid .contract; and third, the character and effect of the bill of sale, and its sufficiency to pass a legal title to the property in dispute.
The history of this case is briefly this: On the 10th day of July, 1830, Sarah Sevrard, who is alleged was non compos mentis, executed a bill of sale to Elijah Marshall, her brother-in-law, for certain slaves therein named, upon the consideration that the said Marshall would maintain and support her through life, which was acknowledged and recorded. Sarah Seward died about the year 1835, and in 1850, the plantifT took out letters of administration upon her estate, by virtue of which he instituted suit against the defendant to recover the value of the slaves in controversy.
Although the fact does not appear, yet it seems to be conceded that the defendant in the present action, is to be treated as holding the same title to the property in dispute, which Marshall held by virtue of the conveyance from Sarah Seward.
[78]*78In the .course of the trial, the questions before enumerated arose out .of the .evidence offered.
The evidence which was first excluded, and which forms the basis of the first exception, was that of Charles Seward, in reference to the declarations of Sarah. Those statements are as follows,: “She came to my house once after the time it was said that she had made a writing, giving her negroes to Mr. Marshall. I asked her about it; she said she had not done so that she knew of, and if she had she wanted me to get them back.” These declarations it will be observed, were made after the execution of the deed, and were, therefore, no part of the res gestee* The purpose of the plaintiff, (who represents the grantor) in introducing this testimony was to vacate the deed, and it would seem to be a violation of a well established legal principle, to allow the declarations of a party to an instrument of writing, made subsequent to its execution, to be given in evidence to invalidate it upon any ground. But the evidence, it is said, was offered to establish insanity. Apart from the principle that a party shall not stultify himself, it will be readily seen that so far from necessarily tending to prove insanity, these declarations may as well have been the fruits of a well conceived deceit, as of a vacant mind. Hurn’s Lessee vs. Soper, 6 Har. and Johns., 276.
The objection to the testimony, we think, was well taken.
The next objection was made to receiving the opinion of W. H. Spedden, in regard to the competency of Sarah Seward to make a valid deed. The law on this subject has been fully and well defined by our Court of Appeals, in the case of Brooke vs. Townshend, 7 Gill, 10, and it but remains for us to apply the principles of that case to the one now before us. The principles to be gathered from that case, so far as they are applicable to the present, are these: that the mere naked, unsupported opinion of the witness, relative to the sanity of the party, is not admissible; yet his opinion, in connection with the facts upon which it is formed, is evidence, provided those facts are of such a nature as will enable him to form a knowledge of the party’s intellect which .is brought in question.
[79]*79From, the facts deposed to by Spedden, viz., (that he knew Sarah Seward; that he lived near her; has seen her at church and at Marshall’s; that she did not eat with the family, and did not speak to the wdtness nor with the family, and, in some other respects, was peculiar in her deportment) no legitimate conclusions can be drawn as to the state of her mind, especially when we are told by the witness himself, that he was but a small boy when these circumstances occurred.
This evidence was inadmissible, inasmuch as the court can discover that no sufficient foundation was laid for the opinion of the witness, which was to constitute the knowledge which was to be given to the jury.
An opinion under such circumstances cannot be treated as knowledge, but must be viewed as “the mere unsupported opinion of the witness,” and therefore, under the authority of Brooke vs. Townshend, cannot be received as testimony.
We can see no valid objection to the bill of sale as evidence in this cause.
It is first objected to on the ground, that its delivery has not been proved. Delivery, it is true, is essential to the legal validity of a deed, but it is not necessary that any precise form of delivery should be resorted to. The delivery may be either actual or verbal, and it is sufficient if there be an intention or assent of the mind, on the part of the grantor, to treat the deed as his. Byers vs. McClanahan, 6 Gill and Johns., 250. The instrument in this case was duly acknowledged and recorded, and whether the law requires these formalities or not, to make this a valid deed, they are, nevertheless, sufficient to warrant the presumption of a legal delivery by the grantor. The clerk after he has recorded a deed must return the same to the grantee, who is the proper party to receive it, and therefore the possession of the clerk, under such circumstances, will be regarded as the possession of the grantee. Possession of the bill of sale by the defendant, is evidence of delivery to the original grantee, until the contrary is shown by the plaintiff.
The bill of sale is objected to in the second place, because [80]*80it was not legally and sufficiently executed. By the agreement filed in the cause it is expressly admitted, “that the instrument was signed by Sarah Sevsffird by making her mark, and by Elijah Marshall in his own proper handwriting.” This we regard as an unqualified admission that the deed was regularly signed and sealed. Indeed we are at a loss to know how else it could have' been executed.
The third point raised in the appellant’s prayer is, that the instrument was a mere executory contract, and not an absolute conveyance. The face of the instrument itself shows the reverse to be the fact, and if there be a question about the absoluteness of the deed, it must arise out of the circumstance, that the consideration for the' conveyance, as set out on its face, assumes the shape of a Covenant to' be executed by the grantee in futuro.
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Mason, J.,
delivered the opinion of this court.
We do not deem it necessary to express any opinion in regard to the effect which the case of Key vs. Davis, 1 Maryland Rep., 32, should have upon the case now' before us. Assuming that the present proceeding is not inconsistent with the principles annunciated in that case, still there are other questions presented in this record, which will enable us to settle the present controversy, independently of the principles involved in the case of Key vs. Davis.
Although the questions which -we are called upon to decide were presented in numerous and various shapes in the court below, yet, upon an attentive examination of the record, wc find, in fact, but three distinct, substantive, propositions, submitted for our adjudication. The first relates to so much of the testimony of .Charles Seward, as seeks to disclose to the jury the declarations of the decedent in regard to the execution by her, of the bill of sale in controversy ; the second is the admissibility of Wm. II. Spedden’s testimony, in so far as he attempts to give his opinion of the mental capacity of the deceased to make a valid .contract; and third, the character and effect of the bill of sale, and its sufficiency to pass a legal title to the property in dispute.
The history of this case is briefly this: On the 10th day of July, 1830, Sarah Sevrard, who is alleged was non compos mentis, executed a bill of sale to Elijah Marshall, her brother-in-law, for certain slaves therein named, upon the consideration that the said Marshall would maintain and support her through life, which was acknowledged and recorded. Sarah Seward died about the year 1835, and in 1850, the plantifT took out letters of administration upon her estate, by virtue of which he instituted suit against the defendant to recover the value of the slaves in controversy.
Although the fact does not appear, yet it seems to be conceded that the defendant in the present action, is to be treated as holding the same title to the property in dispute, which Marshall held by virtue of the conveyance from Sarah Seward.
[78]*78In the .course of the trial, the questions before enumerated arose out .of the .evidence offered.
The evidence which was first excluded, and which forms the basis of the first exception, was that of Charles Seward, in reference to the declarations of Sarah. Those statements are as follows,: “She came to my house once after the time it was said that she had made a writing, giving her negroes to Mr. Marshall. I asked her about it; she said she had not done so that she knew of, and if she had she wanted me to get them back.” These declarations it will be observed, were made after the execution of the deed, and were, therefore, no part of the res gestee* The purpose of the plaintiff, (who represents the grantor) in introducing this testimony was to vacate the deed, and it would seem to be a violation of a well established legal principle, to allow the declarations of a party to an instrument of writing, made subsequent to its execution, to be given in evidence to invalidate it upon any ground. But the evidence, it is said, was offered to establish insanity. Apart from the principle that a party shall not stultify himself, it will be readily seen that so far from necessarily tending to prove insanity, these declarations may as well have been the fruits of a well conceived deceit, as of a vacant mind. Hurn’s Lessee vs. Soper, 6 Har. and Johns., 276.
The objection to the testimony, we think, was well taken.
The next objection was made to receiving the opinion of W. H. Spedden, in regard to the competency of Sarah Seward to make a valid deed. The law on this subject has been fully and well defined by our Court of Appeals, in the case of Brooke vs. Townshend, 7 Gill, 10, and it but remains for us to apply the principles of that case to the one now before us. The principles to be gathered from that case, so far as they are applicable to the present, are these: that the mere naked, unsupported opinion of the witness, relative to the sanity of the party, is not admissible; yet his opinion, in connection with the facts upon which it is formed, is evidence, provided those facts are of such a nature as will enable him to form a knowledge of the party’s intellect which .is brought in question.
[79]*79From, the facts deposed to by Spedden, viz., (that he knew Sarah Seward; that he lived near her; has seen her at church and at Marshall’s; that she did not eat with the family, and did not speak to the wdtness nor with the family, and, in some other respects, was peculiar in her deportment) no legitimate conclusions can be drawn as to the state of her mind, especially when we are told by the witness himself, that he was but a small boy when these circumstances occurred.
This evidence was inadmissible, inasmuch as the court can discover that no sufficient foundation was laid for the opinion of the witness, which was to constitute the knowledge which was to be given to the jury.
An opinion under such circumstances cannot be treated as knowledge, but must be viewed as “the mere unsupported opinion of the witness,” and therefore, under the authority of Brooke vs. Townshend, cannot be received as testimony.
We can see no valid objection to the bill of sale as evidence in this cause.
It is first objected to on the ground, that its delivery has not been proved. Delivery, it is true, is essential to the legal validity of a deed, but it is not necessary that any precise form of delivery should be resorted to. The delivery may be either actual or verbal, and it is sufficient if there be an intention or assent of the mind, on the part of the grantor, to treat the deed as his. Byers vs. McClanahan, 6 Gill and Johns., 250. The instrument in this case was duly acknowledged and recorded, and whether the law requires these formalities or not, to make this a valid deed, they are, nevertheless, sufficient to warrant the presumption of a legal delivery by the grantor. The clerk after he has recorded a deed must return the same to the grantee, who is the proper party to receive it, and therefore the possession of the clerk, under such circumstances, will be regarded as the possession of the grantee. Possession of the bill of sale by the defendant, is evidence of delivery to the original grantee, until the contrary is shown by the plaintiff.
The bill of sale is objected to in the second place, because [80]*80it was not legally and sufficiently executed. By the agreement filed in the cause it is expressly admitted, “that the instrument was signed by Sarah Sevsffird by making her mark, and by Elijah Marshall in his own proper handwriting.” This we regard as an unqualified admission that the deed was regularly signed and sealed. Indeed we are at a loss to know how else it could have' been executed.
The third point raised in the appellant’s prayer is, that the instrument was a mere executory contract, and not an absolute conveyance. The face of the instrument itself shows the reverse to be the fact, and if there be a question about the absoluteness of the deed, it must arise out of the circumstance, that the consideration for the' conveyance, as set out on its face, assumes the shape of a Covenant to' be executed by the grantee in futuro. This is true, but it is nevertheless a valuable consideration, sufficient to' pass the title. In Hannan vs. Towers, 3 Har. and Johns., 151, Chancellor Kilty says: “A consideration may be averred and resorted to without being expressed in the deed, and any consideration, however small, will be sufficient.” In most cases, if not in all, the seal of the party affixed to his signature imports of itself a consideration in law.
We are then asked to say, that unless Marshall, the grantee, “performed his part of the stipulation mentioned in the said paper-writing, that then no title vested in him” by virtue thereof. In the first place, there is no sufficient proof that he did not perform his covenants; but conceding that he did not, the effect of such an omission or breach of contract would not be to avoid the deed. If there was a breach of the covenant, the proper remedy would be an aetion on the covenant itself.
The court was also requested to instruct the jury, “that the bill of sale is not evidence of title to the negroes mentioned in the declaration, unless they are satisfied from the evidence that the said negroes are mentioned in said paper, or are the descendants of Phillis, mentioned therein, born since the execution of said paper.”
[81]*81This paper was necessary to lay the foundation of the defendant’s defence, by enabling him to show that Phillis, the mother of the negroes in dispute, was his slave. Until he had done this he could not show that they were her children, and that they were born subsequent to the time wriien he had acquired his title to Phillis. He claimed the negroes through Phillis, and before ho can successfully establish his title to them, he must show title to Phillis. While it is conceded that this paper is not sufficient of itself to establish, in this way, title in the defendant, to the negroes in dispute, yet it is equally true that it is a link in the chain of evidence, absolutely necessary to perfect the same, and is therefore legally admissible for the consideration of the jury. This view of the question renders any consideration of the sufficiency of the general clause in the conveyance, to pass all the property of the grantor, though not particularly enumerated, unnecessary.
It is contended, and the court are asked so to instruct the jury, “that though Sarah Seward did execute the paper writing, yet if they believe from the evidence, that at the time of its execution, or before, said Sarah was incapable, from mental imbecility, to execute a valid deed or contract,” &c., that then they are bound to treat the deed as void, and to find for the plaintiff.
The court was right in rejecting this prayer. As has already been stated, we will not pause to inquire into the regularity of this mode of attacking the deeds of persons non compos mentis. Though the proceeding might be regular, yet the proposition was wrong, inasmuch as it involves the principle, without qualification, semel furibundus, semper furibundas prmsmniiur, or once insane presumed always insane.
In Brooke vs. Townshend, this subject is also fully reviewed. In regard to the maxim just quoted, the court say: “It is an error to suppose that it is unqualified in its character, or is of universal application.” Some species of insanity are not presumed to be continuing in their nature, and therefore the prayer was vicious, because it applied the principle to every species of insanity, without exception.
[82]*82The last question which is before us, arises out of thé' following prayer, that the paper, writing is not evidence of title to the property mentioned therein, unless the jury are satisfied that there was a delivery of the property mentioned therein by the grantor to the grantee.
The deed itself declares that the property was delivered, and if this is not conclusive upon the grantor, and sufficient to estop him from denying the fact, it surely is enough to throw upon him the burthen of proof to establish the contrary fact of non-delivery. Any proposition, therefore, which involves the doctrine, that a party must prove a fact which the opposite party has admitted under his hand and seal, by independent testimony, is so manifestly erroneous as hardly to need denial.
While we have not decided the several questions raised and argued in this case, in the order in which they were presented, yet we think we have disposed of them all, and not being able to discover in any of them a good ground for a reversal of the judgment of the county court, we affirm the same.
Judgment affirmed.