Columbia,

Nov. 1849.

#### *Jennings J. Wood and wife et al.*v. *B. F. Ingraham and wife et al.*

"Where a voluntary deed was executed, when neither the *cestui que trust*nor trustee, nor any one acting for them was present, and the donor retained the entire possession and control of the deed, and made no publication of its contents, nor declaration of her intention to deliver it — the deed was *held,*not to have been delivered.

To give validity to every deed, it is necessary it should be delivered; and this may be done either formally, or the delivery may be inferred from circumstances which indicate that the grantor intended to part with the dominion of the instrument, and to put it into the possession of the grantee.

*106*Before*Caldwell, Ch. *at Barnwell, February,*1849. *J ’*

*'*After a full hearing of this cause upon bill, answer, &c. his Honor pronounced the following decree, which sufficiently states the facts.

Caldwell, Ch. Lucy E. Minor, on the 14th of July, 1847, made an instrument in writing, which is the subject of this suit, as far as the personal property comprised in it extends, conveying thirteen slaves, household furniture, and all her real estate to Francis F. Dunbar, for the plaintiff, Laura A. Wood, on certain terms and conditions therein expressed.

Mrs. Minor was the mother of Mrs. Wood and a Mrs. Gar-vin — she was in her second widowhood and far advanced in years — she was on the eve of marriage with Benjamin F. Ingraham, a young man who had just arrived of age. She and Ingraham inteimarried on the day following. She had, previously to her signing and sealing this paper, made a will, which she had deposited with Francis F. Dunbar; and being disposed to alter the same, (as she says in her answer,)

' from considerations arising out of the intended marriage, she, on or about the 12th of that month, called on him and informed him of her intention to alter it, and of the manner she intended to dispose of her property, and requested him to prepare, or cause to be prepared, the deeds necessary to carry her intention into effect. It appears he had four deeds prepared, which she signed and sealed in the presence of In-graham and another person, who subscribed their names as witnesses. She then handed the papers to Miss Hext, (who lived with her,) directing her to put them in her (Mrs. Minor’s) drawer; she states in her answer, “that she retained the said deeds in her own possession with the intention of reflecting on the subject before she delivered them.” In-graham states in his answer, that “ he was ignorant of then-contents, that is to say, he conjectured, and, possibly, knew that the defendant, Lucy E. Ingraham, intended by the said deeds to dispose of a portion of her estate; but he did not know what part, in what manner, or to whom.”

She relates in her answer the circumstances under which she destroyed the deed: — “ That, influenced solely by her own judgment, and for reasons satisfactory to herself, she made up her mind to destroy the said deeds; and for that purpose, took them from a drawer, where they had been from the time they were signed, and the key of which she alone kept; and cutting the deed, in which the complainants claim to be interested, into several pieces, threw it into the fire; but before it was entirely consumed, it occured to her that simply cutting her signature from the papers would ac*107complish her object, and she took up what remained of the said deed. Of the part preserved, she made an exhibit with her answer.” The defendants distinctly state, that neither of the deeds were, at any time after they were signed, out of the possession of the said Lucy E. Ingraham ; nor did the de-iendants, or either of them, at any time, by word or act, or otherwise, deliver the said deeds or either of them, to the complainants or either of them, or to any other person or persons in trust, for the use of the intended donees; and they submit, that no estate, title, right, or property, vested or contingent, passed to the intended donees, from or out of the defendant, Lucy E. Ingraham, by force or virtue of the deeds.

The only question involved in this case is, was the deed, the subject of dispute, delivered ? When she signed and sealed the paper, neither the trustee nor the *cestuique trust*was present, nor did any one act on their behalf or as agent. In-graham and another person subscribed their names as witnesses, and none of the papers were either formally or informally delivered to any person for the trustee or *cestuique trust.*No declaration was made at the time indicating her intention to deliver it. She kept it in her possession, within her control, in her drawer, under her key ; and if the intermediate period were struck out from the time of her signing and sealing it to the moment she destroyed it, it would seem that her possession was as perfect and her dominion as absolute as when she handed it to Miss Hext, with directions to put it away in her drawer ; had she thrown it in the fire, or torn it up before she did this, would any one have doubted that the delivery was not made, and that what she had done was inoperative and void ? And can the mere preservation of the paper a few days under her absolute control, alter the case, during which she neither did any further act to carry out her intention, or made any declaration shewing that she intended it should be considered as delivered? She states the reason she declined to deliver it — she was deliberating on the subject; while she held the paper in her own hand, the property could not vest in another.

An instrument of this kind is a dead letter, although signed and sealed, until it be deliveied — the delivery gives it vitality and validity. No matter with what solemnities, or in what a multitude of witnesses the maker may sign and seal such a paper, some further act or declaration is necessary to its completion; if nothing else be done or said, the reservation of the possession rather rebuts than raises the presumption that a delivery was intended.

The party may pause as long as she pleases upon the very verge of consummating the deed, but if she destroys it before she has parted with it, or before she makes some declaration that shews she intends a delivery of it, it is inchoate *108and inoperative. A delivery of a deed may be inferred (from ciicumstances — such as the donor’s declaring she intended it should take effect, or her having it proved and recorded, or if the deed was in the donee’s possession, or if it had been left on the table after being executed, with the knowledge of the donor, and a friend of the trustee or *cestui que trust*had taken it up to hand it over to either of them, without objection being made by the donor. But this case presents no such circumstances, and must be therefore decided on the ground that there is no evidence from which a delivery may be presumed. Without running through the long of English cases on the subject, which are not easily reconciled with each other, it would seem that a formal delivery is not necessary, if there be acts evincing an intention to 4cití[¡ver¡ ai)(j t|iat jess evidence will suffice in voluntary con-than in other cases, yet whenever the circumstances establish that the grantor never parted orintendedto part, TMlh l^ie Possess'on °f the deed, it will not be considered as delivered. Perhaps the mere fact of retaining possession where the ciicumstances do not prove a formal delivery, would not lead to the conclusion that the deed was not intended to be absolute, and the *onus*would seem to be upon the grantor, or those claiming in opposition to the deed, to shew that there was no delivery. But in this case, all the circumstances appear, and it is not a matter of inference as to what the defendant, Mrs. Ingraham, did. In one of our cases, *Jackson*v. *Inabenet,*a father made a deed, conveying slaves in trust for a son; neither trustee nor *cestui que trust*was present; one of the witnesses to it proved it before a magistrate, but he stated that he did not see the deed delivered — that the grantor took it with him and kept the control, and there was no proof that he ordered it to be recorded; it was held that the deed had not been delivered, and the property mentioned therein was not controled by it. The doctrine was fully discussed in the case of *Gilmore, admix,*v. *Whitsides, adm’r.,*and recently re-considered in *Sadler*v. *Scott,*as to the delivery of an instrument to the agent of the donor, with instructions to keep it till the donor’s death, and then deliver it, the donor retaining dominion over it during his life, was held not such a delivery as would make the instrument valid, as a deed, and a delivery (by the agent,) after the donor’s death, would be void.

Naldred v. Gilham’s, 578; Cotton v. King 2 ibid, 359; 4 Comyn's Rep. Dudley's 14; Mass cases, 1849.

'2Hill Ch. 411.

Hay T. 1848.

Notwithstanding there was considerable deliberation on the part of Mrs. Minor, before she signed and sealed the paper, yet she appears carefully to have kept the staff in her-own hand and not to have parted or intended to part, by any act o'r declaration, from the possession of the instrument. I do not think the circumstances are sufficient to warrant the conclusion that there was a delivery. It is therefore ordered *109and decreed, that the bill be dismissed — each party paying their own costs. ^

GROUNDS OF APPEAL.

The complainants give notice that at the next sitting of the Appeal Court a motion will be made to reverse the Chancellor’s decree, in the above cause, on the following grounds, viz:

1st. Because there was sufficient proof that the deeds in question were delivered; and having been duly executed, the said deeds ought to be sustained.

2nd. Because, even if there were not sufficient proof of a technical delivery of the deeds in question, they ought to be sustained and carried into effect as articles of marriage settlement. Nor should the defendant, Ingraham, be allowed so to avail himself of the marriage as to enjoy the fruits of a fraud perpetrated under such circumstances.

3rd. Because the decree is contrary to evidence, law and equity.

*Bellinger*& Hutson, *J. Bausket,*for the motion.

*Curia, per*

Caldwell, Ch.

To give validity to every deed, it is necessary it should be delivered, and this may be done either formally, or the delivery may be inferred from circumstances, which indicate that the grantor intended to part with the dominion of the instrument, and to put it into the possession of the grantee. The common law required a delivery in every case, whether it be a gift of a personal chattel, or a deed of real or personal estate: the Civil Law only required delivery of some gifts, which, as a class, was very limited, yet the rule was so stringent as to exact an actual tiansilion to perfect the gift. It would seem that there was wisdom in the Common Law’s relaxing the rule requiring a formal delivery, and in permitting the fact of a delivery to be inferred from the circumstances. The situation of parties often aflords the means of coming to a correct conclusion in relation to their declarations or acts- — here, neither the *cestui que trust,*or trustee, or any one acting for them, was present; they had neither paid any thing or incurred any liability, in consideration of Mrs. Minor’s making the deed; and it may well be doubted whether either of them knew any thing of her intention; it is clear they were ignorant of the contents of the deed. She declined publishing what the instrument was, when one of the witnesses made some objections to subscribing it without knowing it contents, and she seems to have carefully kept not only the control but the actual possession of it through the whole transaction.— Nothing occurred at the time that bears any resemblance to a formal delivery, and the circumstances rebut the presumption of any intention to deliver the deed, as she kept the pos*110session of it, and made no declaration and did no act that had a tendency to complete its execution.

SJae.^&Walk.

12 Ves John. 254 lb. 337.

Rice Eq. 243.

5 Mason’s Rep-60-

4 Marsh, 573-

There is nothing in this case that is opposed to the rule that has been settled in New York since 1814, and in England, since 1826, that if a deed be signed and sealed, and declared by the grantor in the presence of attesting witnesses, *to be delivered as his*deed, it is an effectual delivery, if there be nothing to qualify it, notwithstanding the grantee was not present, nor any person on his behalf, and the deed remained under the grantor’s control.

It is not now necessary to consider the doctrine laid down in *Cecil*v. *Butcher,*that a Court of Equity will regard the instrument as imperfect, if it be voluntary and never parted with, and executed for a special purpose never acted on, and without the knowledge of the grantee, and in such case will lend no assistance to the grantee.

This case is to be distinguished from those cases where the voluntary conveyances in the grantor’s possession have been held to operate in favor of the grantees, as they were in every instance complete deeds, wanting no other act or declaration to confirm them, but were legal transfers of the ProPerty or title. *Antrobus*v. *Smith, S. Bonnerly*v. *Arden, Burns*v. *Winthrop.*

It has been argued that this case bears an analogy to Dawson v. *Dawson,*but a comparison of the evidence will demonstrate the difference — there the affidavit of the witness that the deed had been signed, sealed and delivered, the recording of the deed at the instance, (as was presumed) of the donor, and his subsequent declarations that he held the property in trust for his children, when taken together, left no doubt as to his intention to deliver the deed and to make it irrevocable. There is the absence of all these circumstances in this case, which only resembles that in one point; that in both cases the grantors had possession of the instruments.

In *Carr*v. *Hoxie,*an instrument was signed and sealed by the grantor, in the absence of the grantee, but left with a third person, without any express or implied authority to deliver it to the grantee, the Court held it was not the deed of the grantor.

Proof that a deed was signed and attested, and left on the table without delivery to any one, in the absence of the do-nee, was held, in *Hughes*v. *Easten,*not *to be*sufficient evidence of delivery. If delivery could not be presumed from' the facts of these cases, much less can it be in the present case, where the right of Mrs. Minor to the possession of the paper was not suspended for a moment, but her absolute control over it continued from the commencement to the conclusion of the transaction — and no declaration or act shewed that she intended to part with it, or to permit any other person to have the possession of it.

*11112 Cond. Eng. Ch. Ca. 445.

2 Barn. & C. in 88; 4 Barn. & A. 44.

In *Uniacke*v. *Giles,*the Lord Chancellor greatly relied on the circumstance of the grantor’s not depositing the Avith a third person. But he proceeds much further and says, “ 1 will suppose she went through the legal formalities of saying not only, I seal and sign, but I *deliver*this deed, still these legal ceremonies did not finally conclude her. By carrying the deed back to her depository, she shewed a plain intent not to divest herseli of power over it, but to hold it just as revocable as a will, and whatever words she used, that intent must determine its character.”

Ch. Justice Abbot, in *Murray*v. *Earl Stair,*in the case of a conditional delivery, seems to corroborate the conclusion the preceding case; he says “ it is not necessary that any express words should be used at the time; the conclusion must be drawn from all the circumstances.”

The reasonableness of the provision of the deed seems to strengthen the argument that it was delivered, but suppose it had conveyed her whole estate absolutely, would not the contrary conclusion be deduced without doubt, and demonstrate the propriety of her pausing before she consummated the act?

The grantor may have had as cogent reasons before she completed the gift, to keep the control of the instrument in her own hands, as if she had conveyed her whole estate— the future conduct of her children towards her might be much more easily controlled by that means than any other within her power.

The current of decisions has already gone sufficiently far to enable the courts to carry out the intention of the donor and to protect the rights of the donee, but they have never presumed delivery without some evidence that it was the intention of the donor, and no case can be found that would warrant the conclusion, that a delivery had been made, merely because the grantor had signed and sealed the instrument without any further act or declaration.

The disastrous consequences of any such rule cannot be calculated. It would greatly tend to disturb domestic quiet and enkindle inextinguishable feuds in families; and few could feel secure in keeping by them such instruments for further reflection or future actnn, without subjecting themselves *to the*painful process of having their private papers brought before the Court for its judgment. The second question, as to the instrument being marriage articles, depends upon the same principle — such articles would be void if they were not delivered.

It is therefore ordered and decreed that the appeal be dismissed, and the Circuit decree affirmed.

Johnston & Dtjnkin, CG. concurred.

Dargan, Ch. Absent at the hearing, from indisposition.

*Decree affirmed.*