Cook, J.,
after stating the case: Plaintiff was clearly entitled to have the instructions prayed for given to the jury. We learn from the sages of the law, Sir Edward Coke and Sir William Blackstone, that no title passes by deed unless it is
delivered.
What acts constitute delivery, and when the delivery becomes complete, have been the subjects of much discussion in m'any of the decisions' of our own court as well as in those of other jurisdictions. “No particular form ox ceremony is necessary : it will be sufficient if a party testifies his intention in any manner, whether by action or by word, to deliver or put it into possession of the other party; as, if a party throw a deed upon a. table, with the intent that it may be taken by the other, who accordingly takes it; or, if a stranger deliver it with the assent of the party to the deed. 1 Phillips Ev. (2d Ed.), 467; 1 Coke Lit., 36a. Where the deed was executed by the donor in the presence of the donee, and then attested by the witness, who immediately retired leaving the deed so executed lying on the table in the presence of both the donor and the donee (which it seems was, after his death, found among the donee’s aunt’s papers, a presumption is raised that the deed was delivered to the donee.
Levister v. Hilliard,
57 N. C., 12. There must be an intention of the grantor to pass the deed
from
his possession and beyond his control, and he must
actually do so
with the intent that it shall he taken by the grantee or by some one for him. Both the intent and act are necessary to a valid delivery. Wliether such existed is a question of fact to be found by the jury.
Floyd v. Taylor,
34 N. C., 47. But if the grantor did not intend to pass the deed beyond his possession and control, so that he would have no right to recall it, and did not do so, then there would be no delivery in law; the facts of which must likewise be found by the jury. No presumption of delivery arises so long as the deed remains in the possession of the maker; hut,
per contra,
the presumption is that it had not been made and the contrary has to be proved.
Kirk v. Turner,
16 N. C., 14;
Baldwin v. Maultsby,
27 N. C., 505;
Newlin v. Osborne,
49 N. C., 157; 67 Am. Dec., 269. No title can pass by the signing, sealing and attestation of a deed; there must also be a
delivery
which is a necessary agency by which by which the title moves from one person to another. But when the deed, properly exeerited, is found out of the possession of the maker and in the possession of some other person, then the law presumes the¡
fact
to be that it was
intentionally
delivered to or for the grantee.
Snyder v. Lackenour,
37 N. C., 360; 38 Am. Dec., 685;
Ellington v. Currie,
40 N. C., 21;
Airey v. Holmes,
50 N. C., 142;
Phillips v. Houston,
50 N. C., 302;
Robbins v. Rascoe,
120 N. C., 79; 38 L. R. A., 238; 58 Am. St. Rep., 774.
But if the deed passed out of the maker’s possession by accident, fraud or mistake, or was not intended to be delivered to the grantee or any one for him, then such presumption of the fact of delivery may be rebutted.
Love v. Harbin,
87 N. C., 249;
Whitman v. Shingleton,
108 N. C., 193;
Helms v. Austin,
116 N. C., 751.
In
Snyder v. Lackenour, supra,
Judge Gaston, speaking
for the Court, says': “The deed of gift from George Lacke-nour to the plaintiff, was executed in the absence of the plaintiff, was attested in the presence of the donor by two witnesses, and at the request of the donor was proved and registered. We hold, therefore, unhesitatingly that the defense set up that it was not delivered, is in law unfounded.” In
Phillips v. Houston, supra,
where the donor handed the deed to a third person, signed and sealed, to have it proved and registered
(without retaining
any authority or power to control it) which was returned to him, and he then delivered it to another person in like manner and for the like purpose, but who neglected to have it registered until after the donor’s death, it was held that the delivery to the
first
person to whom it was handed, was a complete delivery, the point being that the donor absolutely parted with the deed with no intention of exercising any further control over it.
But when the grantor parts with the possession of the deed,
showing
an intention that it should not
then
become a deed, but delivered merely as a depository and subject to the future control and disposition of the maker, then the delivery would be incomplete and no title could pass.
Rae v.
Lovick, 43 N. C., 89. This case is specially applicable to. the case at bar.
In the cases above cited, where delivery was made to the Clerk of the Superior Court for probate, or probated and registered,
no condition or purpose
was expressed inconsistent with an intent to malee a complete and absolute delivery.
Our conclusion is, that there is no delivery of a deed where the maker has not gone so far with its execution that he can not recall or control it; and if from the evidence the jury should have found that Tarlton intended that Redfearne should hold the deed subject to his further direction and control, then there would have been no delivery. And if there was no delivery made when he handed it to' Redfearne, then no delivery could have been made after Tarlton’s death
(Baldwin v. Maltsby, supra),
and bis Honor erred in not giving the instructions prayed for.
Defendants, however, contend that delivery is presumed from the acknowledgment of the husband and acknowledgment and privy examination of the wife (plaintiff) before the Justice of the Peace. They “acknowledged the due execution of the foregoing deed,” and that by “due execution” the law presumes the fact to be that it
had been delivered.
This contention is without merit and .can not be sustained. To convey title free from incumbrance,, the acknowledgment and privy examination of the wife is a pre-requisite imposed by law. Raving complied’ with the statute, the deed would then be ready for delivery — not delivered. Her acknowledgment and privy examination can not be taken as an admission that the deed had been made, for, had the delivery been made
before
it was taken, the deed would have been invalid as to her rights; if so, why presume that an invalid delivery had been made, when the object of taking it was to make a valid one which would bar her dower right ? Should the law impose such a presumption as is contended for, great hardship and gross injustice would follow. A deed thus prepared or “executed” for delivery, and in fact not delivered on account of mischance, awaiting the compliance of bargainee, or an opportunity to meet and perfect the agreement, or upon his default, etc., and then found in the possession of the maker (among his papers, perhaps) after his death, would impose upon the widow and devisees or heirs at law the burden of proving that it had
not
been delivered.
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Cook, J.,
after stating the case: Plaintiff was clearly entitled to have the instructions prayed for given to the jury. We learn from the sages of the law, Sir Edward Coke and Sir William Blackstone, that no title passes by deed unless it is
delivered.
What acts constitute delivery, and when the delivery becomes complete, have been the subjects of much discussion in m'any of the decisions' of our own court as well as in those of other jurisdictions. “No particular form ox ceremony is necessary : it will be sufficient if a party testifies his intention in any manner, whether by action or by word, to deliver or put it into possession of the other party; as, if a party throw a deed upon a. table, with the intent that it may be taken by the other, who accordingly takes it; or, if a stranger deliver it with the assent of the party to the deed. 1 Phillips Ev. (2d Ed.), 467; 1 Coke Lit., 36a. Where the deed was executed by the donor in the presence of the donee, and then attested by the witness, who immediately retired leaving the deed so executed lying on the table in the presence of both the donor and the donee (which it seems was, after his death, found among the donee’s aunt’s papers, a presumption is raised that the deed was delivered to the donee.
Levister v. Hilliard,
57 N. C., 12. There must be an intention of the grantor to pass the deed
from
his possession and beyond his control, and he must
actually do so
with the intent that it shall he taken by the grantee or by some one for him. Both the intent and act are necessary to a valid delivery. Wliether such existed is a question of fact to be found by the jury.
Floyd v. Taylor,
34 N. C., 47. But if the grantor did not intend to pass the deed beyond his possession and control, so that he would have no right to recall it, and did not do so, then there would be no delivery in law; the facts of which must likewise be found by the jury. No presumption of delivery arises so long as the deed remains in the possession of the maker; hut,
per contra,
the presumption is that it had not been made and the contrary has to be proved.
Kirk v. Turner,
16 N. C., 14;
Baldwin v. Maultsby,
27 N. C., 505;
Newlin v. Osborne,
49 N. C., 157; 67 Am. Dec., 269. No title can pass by the signing, sealing and attestation of a deed; there must also be a
delivery
which is a necessary agency by which by which the title moves from one person to another. But when the deed, properly exeerited, is found out of the possession of the maker and in the possession of some other person, then the law presumes the¡
fact
to be that it was
intentionally
delivered to or for the grantee.
Snyder v. Lackenour,
37 N. C., 360; 38 Am. Dec., 685;
Ellington v. Currie,
40 N. C., 21;
Airey v. Holmes,
50 N. C., 142;
Phillips v. Houston,
50 N. C., 302;
Robbins v. Rascoe,
120 N. C., 79; 38 L. R. A., 238; 58 Am. St. Rep., 774.
But if the deed passed out of the maker’s possession by accident, fraud or mistake, or was not intended to be delivered to the grantee or any one for him, then such presumption of the fact of delivery may be rebutted.
Love v. Harbin,
87 N. C., 249;
Whitman v. Shingleton,
108 N. C., 193;
Helms v. Austin,
116 N. C., 751.
In
Snyder v. Lackenour, supra,
Judge Gaston, speaking
for the Court, says': “The deed of gift from George Lacke-nour to the plaintiff, was executed in the absence of the plaintiff, was attested in the presence of the donor by two witnesses, and at the request of the donor was proved and registered. We hold, therefore, unhesitatingly that the defense set up that it was not delivered, is in law unfounded.” In
Phillips v. Houston, supra,
where the donor handed the deed to a third person, signed and sealed, to have it proved and registered
(without retaining
any authority or power to control it) which was returned to him, and he then delivered it to another person in like manner and for the like purpose, but who neglected to have it registered until after the donor’s death, it was held that the delivery to the
first
person to whom it was handed, was a complete delivery, the point being that the donor absolutely parted with the deed with no intention of exercising any further control over it.
But when the grantor parts with the possession of the deed,
showing
an intention that it should not
then
become a deed, but delivered merely as a depository and subject to the future control and disposition of the maker, then the delivery would be incomplete and no title could pass.
Rae v.
Lovick, 43 N. C., 89. This case is specially applicable to. the case at bar.
In the cases above cited, where delivery was made to the Clerk of the Superior Court for probate, or probated and registered,
no condition or purpose
was expressed inconsistent with an intent to malee a complete and absolute delivery.
Our conclusion is, that there is no delivery of a deed where the maker has not gone so far with its execution that he can not recall or control it; and if from the evidence the jury should have found that Tarlton intended that Redfearne should hold the deed subject to his further direction and control, then there would have been no delivery. And if there was no delivery made when he handed it to' Redfearne, then no delivery could have been made after Tarlton’s death
(Baldwin v. Maltsby, supra),
and bis Honor erred in not giving the instructions prayed for.
Defendants, however, contend that delivery is presumed from the acknowledgment of the husband and acknowledgment and privy examination of the wife (plaintiff) before the Justice of the Peace. They “acknowledged the due execution of the foregoing deed,” and that by “due execution” the law presumes the fact to be that it
had been delivered.
This contention is without merit and .can not be sustained. To convey title free from incumbrance,, the acknowledgment and privy examination of the wife is a pre-requisite imposed by law. Raving complied’ with the statute, the deed would then be ready for delivery — not delivered. Her acknowledgment and privy examination can not be taken as an admission that the deed had been made, for, had the delivery been made
before
it was taken, the deed would have been invalid as to her rights; if so, why presume that an invalid delivery had been made, when the object of taking it was to make a valid one which would bar her dower right ? Should the law impose such a presumption as is contended for, great hardship and gross injustice would follow. A deed thus prepared or “executed” for delivery, and in fact not delivered on account of mischance, awaiting the compliance of bargainee, or an opportunity to meet and perfect the agreement, or upon his default, etc., and then found in the possession of the maker (among his papers, perhaps) after his death, would impose upon the widow and devisees or heirs at law the burden of proving that it had
not
been delivered. How could this be done? Erom what source could they get the evidence to prove the non-occurrence of such a presumed fact? No evidence showing that the deed was ever out of his possession, yet should they be required to
prove
that it never was ? Then, if such proof is not made, she would be debarred of her dower and the heirs at law or devisees deprived of their land,
for wbicb not a dollar bad been paid. Surely this can not be law.
We can find no decision to support suck a proposition. We are cited to
Redman v. Graham,
80 N. C., 231, where tbs headnote says: “The execution of a deed
includes delivery,
and therefore the adjudication of a probate judge that the execution has been duly proved is a judicial determination of the fact of delivery, which can not be
collaterally
impeached.” (The italics are ours.) Upon an examination of the case, we find that it shows a state of facts similar to many of the others' above cited: “The deed for the land was prepared and executed by the said defendants and their wives, the latter being privily examined, and duly proved before the Judge of Probate, and
left in his
custody” (italics ours), without expressing any intention whatsoever of exercising any further control over it. Had defendants instructed the Judge of Probate to hold the deed subject to their order’, could it be held by a court that the delivery would be complete, and that title passed to the grantees? We think not.
In the case of
Baldwin v. Maltsby, supra,
the deed was signed and sealed and attested by two. witnesses, and the maker declared to the witnesses that it was “kis act and deed,” and afterwards told a friend, “I am satisfied with the way I have disposed of my negroes; the deed of gift is in my trunk; I wish you would deliver it to Charles Baldwin immediately after my death.” No presumption of delivery arose there. So> in the case at bar, no presumption. of delivery arose from the acknowledgment of the husband, or from the acknowledgment or privy examination of the wife. When he handed the deed to Redfearne, it had been duly prepared and properly “executed,” according to the forms and requirements of law, and ready for delivery; nothing else appearing, this would have been a delivery in law. But there
is evidence tending to show that such delivery was for a temporary purpose, and that lie intended to exercise further control and authority over it, and, if he did, it did not then become his deed.
New Trial.