#### Hezekiah Maynard *versus*Nancy Maynard and Others.

A signs and seals a deed conveying land to his son, and leaves it with the scrivener, with directions to get it recorded, which was done j and the deed, at the grantor’s request, still retained in the scrivener’s hands until the death of the son, when the father reclaimed and cancelled it, the son having known nothing of the transaction; — it was holden, that the father was still entitled to the land, as against the heirs of his son, the conveyance never having been perfected by a delivery of the deed.

This was a writ of *entry sur disseisin,*brought to recover posses sion of a certain tract of land in Marlborough, wherein the demand-ant counts upon his own seisin within thirty years, and upon a disseisin by the tenants.

A trial was had upon the general issue, at the sittings in this county after the last October term, before *Parker,*J., who reports that the demandant’s title is unquestioned, unless taken away by a certain deed, now cancelled, which purports to convey the same to his son, *Abel Maynard,*deceased, under whom the tenants claim to hold the same, the said *Nancy*being the widow, and the other tenants the children, of the said *Abel.*

The deed, which purports to have been made by the demandant, *449for the consideration of 2000 dollars, and contains the usual covenants of warranty, was made under the following circumstances. In April, 1810, *Hezekiah*Maynard, the demandant, called upon *Benjamin Rice,*Esq., who is a subscribing witness to the execution of the deed, and the magistrate before whom it was acknowledged, and told him he wished to make some provision for his son *Abel,*and requested the witness to write a deed of the land, being part of the demandant’s farm, which is described in the deed. This was done by the witness, who read it to the demandant, and he was satisfied with it. A few days afterwards, he called *on the witness, and signed, sealed, and ac- [*457] knowledged, the deed; and he requested the witness to take it to the register’s office, and get it recorded. The witness carried it to the register accordingly, procured it to be recorded, and, in May following, received it back. The witness informed the demandant of this, who told him it was right, and requested him to keep the deed until it was called for. *Abel,*the son, was never present at any of these transactions, nor did it appear that he ever knew of the execution of the deed. About a year afterwards, *Abel*died, and, soon after he was buried, the demandant called upon the witness for the deed, which was given to him, he then saying that he supposed he had a right to do as he pleased with it; and then cut his name and seal from it. It was proved that *Abel,*the son, lived upon the farm with the demandant, his father, and carried it on with his labor, and supported his family upon it. It was also proved, by several witnesses, that the demandant, in conversation after the execution of the deed, considered the land as his son’s property.

The judge instructed the jury that there were no facts proved in the case which, in law, could amount to a delivery of the deed to *Abel;*so that the conveyance was not perfect, and the demandant must recover possession. A verdict was accordingly returned for the demandant, which the tenants moved might be set aside, and a new trial be granted.

*Prescott,*for the tenants,

contended that the delivery of the deed to *Rice*might be considered as a constructive delivery to the grantee. It seems uncertain, from the report, who was to call on *Rice*for the deed. It might be the son, and his death may have prevented it. In that case, it may be considered as an escrow, to take effect when it should be called for by the son. The facts would support a construction, that this was a covenant to stand oeised to the use of the grantor for life, remainder to the use of the son and his heirs. If, by any construction, the law cnn give effect *450to the deed, the Court will incline to such construction, for the benefit of the widow and orphan children, who are the tenants.

*Bigelow*for the demandant.

* *Per Curiam.*

It is very clear that there was no delivery of this deed, so as to give it the effect of passing the estate from the demandant to his son, as whose widow and heirs the tenants claim. The act of registering a deed does not amount to a delivery of it; there not appearing any assent on the part of the son, or even any knowledge that the deed had been executed in his favor, (a) A delivery of a deed, duly executed and acknowledged, to the Register of deeds, aided by a subsequent possession of the deed by the grantee, might be evidence of a delivery to him.

But the facts in the case at bar, testified by the person who acted as the scrivener and magistrate, leave no doubt of the intention of the grantor ultimately to pass this land to his son, but to keep the control over it until he should be more determined upon the subject. He may have chosen to place the deed, perfect as it was, except as to delivery, in the hands of the witness, in lieu of a devise, to operate after his decease ; for nothing was wanting to its *451complete effect but to direct the witness to deliver it to his son after his own decease. (b) He probably chose to consider it as revocable a-t all times by himself, in case of any important change in his family or estate. Whatever may have been his views, however, he retained an authority over it; and having reclaimed and cancelled it, the tenants can claim no title under it.

Whether a creditor of his son might not have taken it in satisfaction of a debt, in consequence of the credit given by putting such an apparent title upon record, and especially as the son was in actual possession of the premises, need not now be determined. We are satisfied that the title never passed out of the demandant, and that he is therefore entitled to a recovery.

*Judgment on the verdict.*

ADDITIONAL NOTE.

[A grantor, upon signing a deed, put it before the grantee, saying, “ There is no go back from that,” and the witnesses then attested it; a note, which was to be the con sideration of the deed, was not handed to the grantor, but the two papers were taken up by the grantee, and the parties went to a magistrate, that he might take the acknowledgment, which was thereupon taken and certified, but the grantor withheld the deed from the grantee, who did not then assert or claim that it had been previously delivered. The grantor, in his answer to a bill in equity, denies any delivery. Held, no delivery was proved *—Mills*vs. Gore, 20 *Pick.*28.

The grantor in a deed having previously contracted to make it, and both parties being present at the execution, the grantee took it- up and carried it away without consent of the grantor. Held, no delivery.— *Woodman*vs. Coolbroth, 7 *Greenl.*181.

If a deed be delivered by the grantor to the register of deeds for the grantee’s use, and afterwards assented to by the grantee, a title vests in him from the time of such assent, as against attaching creditors of the grantor. *—Hedge*vs. *Drew,*12 *Pick,*141.

As the possession and production of a deed by the grantee is *primd facie*evidence of delivery; so its being found in the grantor’s hands raises a presumption against any delivery.— *Hatch*vs. *Haskins,*5 *Shepl.*391.

The delivery of a deed is a question of fact. — *Lindsay*vs. Lindsay, 11 *Verm.*621. — It is error for the court to pass upon it. — *Vanhook*vs. *Barnett,*4 *Dev.*268, acc. — *Hannah*vs. Swarner, 8 *Watts,*9.

As to absolute and conditional delivery of a deed, see *Jackson*vs. *Hill,*5 *Wend.*532. — *Artcher*vs. *Whalen,*1 *Wend.*179. — *Jackson*vs. *Rowland,*6 *Wend.*666. — *Clark*vs. *Gifford,*10 *Wend.*310.— *Church*vs. Gilman, 15 *Wend.*656. — *Keirsted*vs. *Avery,*4 Paige, 9. — *Hinman*vs. *Booth,*27 *Wend.*267 — *Gilbert*vs. *North American,*&c. 23 *Wend.*43. — *Gibson*vs. *Partee,*2 *Dev. & B.*530. — *Sparrow*vs. *Smith,*5 *Conn.*113. — *Stewart*vs. *Stewart,*5 *Conn.*317. — *Hare*vs. *Horton,*2 *Nev. M.*428 — *Exton*vs. *Scott,*6 *Sim.*31.

A deed having been executed before an officer authorized to take acknowledgments, who endorsed upon it a certificate of acknowledgment, the grantor took it, and 'kept it till his death. The grantee was not present at the execution, no formal delivery was made to any other person, and the grantor’s declarations indicated an intent that the conveyance should operate as a testamentary disposition. Held, the deed was ineffectual for want of delivery. — *Stilwell*vs. *Hubbard,*20 *Wend.*44.

Delivery to A for the benefit of B is good, until B dissents.— *Tate*vs. *Tate,*1 *Dev & B. Eq.*22. — So, though B is an infant. — *Ibid.*

After the execution of a deed, the maker said to the attesting witness — “ I ac *452knowledge that to be my act and deed.” Held.no delivery. — *Moore*vs. *Collins. 4 Dev.*384

The agent of A, the grantee, offered to take the deed and carry it to him, he being out of town, but B, the bargainor, objected, saying it might be lost, that he expected A back, and would hand it to him Held, this avoided the effect of B’s preceding words. — *Ibid.*

If a deed is made to two, and delivered to one only, and nothing said of the othei on the livery; the deed is void as to the latter. —8 Watts, 9.

See *Hale*vs. Hills, 8 *Conn.*39. — *Jones*vs. *Jones,*6 *Conn.*111. — F. H.]

(a)

**[If the deed was intended to take effect, as such, upon the execution of it, the estate passed without the knowledge and assent of the son at the time, that not being essential to the operation of the conveyance. — In Doe, *ex Dem.*Garnons, vs Knight, (5 *Barn, & Cresw.*671. — 8 *D. & R.*348,) it was held that, where a party to any instrument seals it, and declares, in the presence of a witness, that he delivers it as his deed, but keeps it in his own possession, and there is nothing to qualify that, or show that the executing party did not intend it to operate immediately, except the keeping the deed in his hands, it is a valid and effectual deed; and the delivery to the party, who is to take by the deed, or to any person for his use, is not essential. The case was very elaborately argued on both sides; and Best, J., in pronouncing the judgment of the court, argues the case with great learning and ability He says, ;t As to the question whether a deed will operate as a deed, though it is never parted with by the person who executed it, there are many authorities to show that it will.”

He cites *Barlow*vs. *Heveage, Prec. Chan.*211.— *Clavering*vs. Clavering, *Prec. Chan.*235. — 2 *Vern.*473. — 1 *Bro. P. C.*122. — *Naldred*vs. Gilham, 1 *P. Wms.*577. — *Boughton*vs. Boughton, 1 *Atk.*625. —To show that a delivery to a third person, for the use of the grantee, makes the deed effectual from the instant of the delivery, he cites *Stirling*vs. Vaughn, 11 East, 623 *—Shep. Touch.*57.— *Taw*vs. Bury, Dyer, 167, b. 1. — *Anders. 4.*— *Alford*vs. Lea, 2 *Leon.*111. — *Cro. Eliz.*54. — *Butler*and *Bakers'*case, 3 Coke, 26, b.—2 *Roll. Abr.*(K), 24, pl. 7. — *Bro. Abr.*tit. *Done ei*Remainder, *P. C.*29. — 8 Viner, *Abr.*488.— *Wankford*vs. Wankford, 1 *Salk*299, 301. — To which may be added *Marbury*vs. *Brooks,*7 *Wheat.*556. — *Brooks*vs. *Marbury,*11 *Wheat.*78.

In the principal case, if the instrument was executed by the demandant as his deed, binding on him at the time, although it was delivered on the faith and confidence which he reposed in the witness, that he would not part with it until called for, it nevertheless immediately became his deed ; and the estate passed irrevocably to the grantee. — *Murray*vs. *Earl of Stair,*2 *Barn. Cresw.*88. — The judge instructed the jury “ that there were no facts in the case that, in law, could amount to a delivery of the deed.” But was it not a proper question for the jury to determine ? —2 *Phillips's Evid.*7th ed. p. 145. — Ed.]

(b)

 [Surely the deed could not operate as a *donatio mortis*causa. It must take effect as a deed *inter*vivos, or not at all, unless it can avail as a testamentary instrument, in which case it must have been duly witnessed according to the statute. — See *Hatch & Al.*vs. *Hatch & Al.*9 *Mass. Rep.*311, and cases cited in note *(a).*—Ed.]