#### EDMUND CLAYTON *vs.*ASA D. LIVERMAN.

June 1839

The delivery of a paper as a deed may be either actual at the time of the making, or by the donee’s taking possession of it as a deed at the time of the making, or at any subsequent time, if done with the knowledge and consent of, the makers. But where there were neither acts done, nor words spoken at the time of the making, from which a delivery of the paper as a deed to the donee, or to any person for him, could bo inferred, and the possession of the paper by the donee long afterwards was satisfactorily accounted for, *it was held*that there was *no*evidence of a delivery to be left to a jury.

' This was an action of detinue for three slaves, tried before his honor Judge Saunders, at Tyrrel, on the last circuit.

The plaintiff claimed the slaves in question, under the following instrument, which he contended was a deed of gift:

“ State op North Carolina, ") *Tyrrel County.*J

“ Know all men by these presents, that I, Patsey Liver-man, and Sarah Liverman, of the aforesaid county, do, for the good will and divers of good causes which we have not mentioned, have given and bequeathed unto Edmund Clayton, the following articles, viz. first, we give and bequeath fifty acres of land, which we purchased of Uriah Spruill; also one negro woman named Phillis, one girl Ginney, and one boy by the name of Robert; to have and to hold the aforesaid property at our death, free and clear from any enthralment whatsoever. In testimony whereof, we have hereunto set our hands and seals, this 28th July, 1828.

her

Patsey -p, Ljverman, (Seal.) mark, her

Sarah + Liverman, (Seal.) mark.

“ Signed, sealed and delivered in the presence of us,

Nancy M’Clees.

Charles M’Olees.”

One of the subscribing witnesses was called, and testified that he wrote the instrument at the request of the makers, and *239read it over to them: that they signed it, and then handed itback to him to witness; that he did witness it, and then either handed it back to them, or laid it on the table, he did not recollect which; and that the plaintiff was present at the lime. The plaintiff, at that time, lived with the makers, who were his aunts, and was their manager and agent, which he continued to be until their deaths. He then took possession of all their property and effects. The paper in question was not proved and registered until after the death of the makers, which was more than eight years after the date of the instrument.

For the defendant it was insisted that the paper was testamentary, and did not operate as a deed; and that there had been no delivery. His Honor charged the jury that they must be satisfied of the fact, that the makers of the paper had delivered it. That the delivery might be either actual at the time of the making, or by the plaintiff’s taking possession of it, as a deed, at the time of the'making, or at any subsequent time, if done with the knowledge and consent of the makers. That if the paper, after being witnessed, had been returned to the makers, and they had held it until their deaths, it was not a delivery; but if it had been laid on the table, and the plaintiff either then or at any subsequent time took possession of it with the assent of the makers, it was a delivery. That it was necessary that something should be said by the makers, signifying their intention to deliver, or they should do some act with an intent that the paper should be delivered, otherwise the instrument could not in law be a deed. There was a verdict and judgment for the plaintiff, and the defendant appealed.

*A. Moore and Heath*for the defendant,,

first, as to the character of the paper — whether a deed or will — referred to *Allison vs. Allison,*4 Hawks 141. Secondly, they contended that there were no facts proved to justify the court inleaving it to the jury to infer a delivery: That there were no express words of delivery, nor any actual delivery: That nothing was heard of the instrument after it was signed, until it was proved for registration, and upon this point, he referred to *Moore*vs. *Collins,*4 Dev. Rep. 384.

Kinney, for the plaintiff,

argued, first, that it was not en*240tirely a question of intention, whether the paper was a deed or a will; but the question depended upon the intention coupled with the instrument as it appeared upon its face; and tjia(. wag therefore a question of law, to be decided by the court, whether the instrument were a deed or a will. Secondly, he admitted that there must be evidence of a delivery, but contended that there was no necessity for *express*words, nor an actual delivery: That any facts proved that might warrant the jury in inferring a delivery, were sufficient: That from the evidence, the presumption was, that the donee took the instrument, which was afterwards in his possession. 2 Stark, on Evid. 477.

Daniel, Judge,

after stating the case as above, proceeded as follows: The rules of law, as to the delivery of deeds, were properly laid down by the Judge, *Moore vs. Collins,*4 Dev. 384. But we think that there was no evidence in this cause for the application of those rules. There were neither acts done nor words spoken, from which a delivery of the paper as a deed to the plaintiff, or to any person for him, could be inferred. The manner in which the plaintiff got possession of the paper is accounted for by the proof of his residence with his aunts, and his taking possession of all their property and effects on their death. It was not shewn that he ever held possession or made any exhibition of the paper until after their death. But the jury were authorised by the instruction to presume such possession; and thence to infer a delivery without any evidence. Their verdict is not contrary to the weight of evidence, but without *any*evidence as to the delivery of the paper as a deed. It is unnecessary for us to give any opinion, as to the question, *whether the paper*is testamentary in its character, as there must be a new trial, because there was *no*evidence of a delivery, even if the paper could be considered as having been draughted for a deed. There must be a new trial.

Per Curiam.