The final requisite for the validity of a deed is delivery. Until delivery it is ineffectual though signed, sealed, and assented to by the parties as an expression of the bargain between them; and when once delivered it is binding though redelivered for safe keeping.37 It matters not when the instrument is dated; it becomes effectual when delivered,38 though
How. 472, 474, 14 L. Ed. 228. But it is hard to see, if recitals are unnecessary, and anything may serve for a seal which is so intended, how "the intention of the executant, as shown by the paper" can be decisive. Non constat that any intention appears from the paper. In Jeffery v. Underwood, the execution is presumed in the absence of evidence to the contrary to have taken place on the day on which the deed is dated.39 It should be observed, however, that though no obligation arises until delivery, the terms of the instrument may be such that it then binds the obligor for occurrences prior to delivery, for example from the date of the instrument; 40 and it is also possible to have a preliminary simple contract to execute in the future a formal contract.41 The primary idea of delivery was concerned with the surrender of possession of the instrument as a fact, rather than with any intent on the part of the obligor to make the deed immediately operative; 42 but at a comparatively early day it was recognized as a necessity that the obligor should surrender possession voluntarily; 43 and thereby the obligor's real or apparent attitude of mind became a factor in the problem, though the
1 Ark. 108, 111, the court said: "The scrawl must appear on the face of the instrument; the proof that it was placed there by way of seal may be by evidence dehors the instrument." In National Provincial Bank v. Jackson, 33 Ch. D. 1, 11, the court referred as important, to evidence of an attesting witness as to whether the finger of the maker was pressed upon the ribbon attached to the document, or anything of the sort, And see cases at the end of the preceding note.
36 In Metropolitan Life Ins. Co. v. McCoy, 124 N. Y. 47, 26 N. E. 345,
11 L. R. A. 708, a penal bond was signed which recited that it was sealed, but which in fact was not sealed at the time when one of the obligors signed it, seals being afterwards affixed by the other obligor. It was held that the first obligor was estopped to deny the validity of the sealing. In State v. Hum-bird, 54 Md. 327, and Taylor v. Gla-ser, 2 S. & R. 502,-it was held that a recital of sealing does not estop the maker of a penal bond delivered without seals from denying that it is sealed. See also Hudson v. Webber, 104 Me. 429, 72 Atl. 184. In Barnet v. Abbot, 53 Vt. 120, it was held that a recital in a bond that it was sealed is evidence that it was sealed when delivered but not conclusive proof. See further as to the general conclusiveness of recitals, supra, Sec. 115. In Brown v. Jordhal, 32 Minn. 135, 19 N. W. 650, 50 Am. Rep. 560, the court said: "Such words in the testimoniaum clause as 'witness my hand and seal, or 'sealed with my seal,' would establish that the scroll or device was used as a seal. ... It would be difficult to conceive how the party could express that the device was intended for a seal more clearly than by the word 'seal' placed within and made a part of it." To the same effect is Osborne v. Hubbard, 20 Oreg. 318, 25 Pac. 1021, In Whittington v. Clarke, 16 Miss. 480, 485, Thatcher, J,, said: "Whenever it is manifest that a scroll is intended to be used 'by way of seal,' it must have that effect whether it appears from the body of the instrument, or from the scroll itself."
37 King v. Fragley, 19 Cal. App. 735, 127 Pac. 813. In the early law this result would doubtless not have been reached.
38 Stone v. Bale, 3 Lev. 348; Osbourn v. Rider, Cro. Jac. 135; Cromwell v.
Grunsden, 2 Salk. 462; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Lee v. Mass. Ins. Co., 6 Mass. 208, 219; Banning v. Edes, 6 Minn. 402; Jackson v. Schoonmaker, 2 Johns. 230; Geiss v. Odenheimer, 4 Yeates, 278, 2 Am. Dec. 407; Swan v. Hodges, 3 Head, 251; McMichael v. Carlyle, 53 Wis. 504, 10N.W.556.
39 Oshey v. Hicks, Cm. Jac. 263; Sav-ery v. Braving, 18 Ia. 246; Lyon v. Mc-Ilvaine, 24 Ia. 9; M'Connell v. Brown, Litt. Sel. Cas. 459; Banning v. Edes, 6 Minn. 402; Colquhoun v. Atkinsons, 6 Munf. 550; Raines v. Walker, 77 Va. 92; Wheeler v. Single, 62 Wis. 380, 22 N. W. 569. See also Anderson v. Weston, 6 Bing. N. C. 296.
40 In Aetna Life Ins. Co. p. American Surety Co., 34 Fed. 291, 300, speaking of a surety's obligation, the court said: "It was not delivered or accepted until July 29th, but when accepted it took effect in accordance with its express terms, and if, by its terms, it commenced on June 15th, and was to continue for 12 months thereafter, the bond, if delivered and if accepted during the 12 months, related back to June 18th. Dawes v. Edes, 13 Mass. 177;
Hatch v. Attleborough, 97 Mass. 533." See also Rose v. Mutual L. Ins. Co., 240 111. 45, 88 N. E. 204.
41 Langdell, Summ. Cont., Sec. 119. Not uncommonly a contract to issue a policy of insurance is made in this way. See, e. g., Tayloe v. Merchants F. Ins. Co., 9 How. 390,13 L. Ed. 187; Union Central L. Ins. Co. v. Phillips, 102 Fed. 19, 41 C. C. A. 263; Devine v. Federal L. Ins. Co., 250 111. 203, 96 N. E. 174; New York L. Ins. Co. v. Mcintosh (Miss.), 41 So. 381.
42 This is shown by the authorities referred to supra, Sec. 205, that a man might be bound by a deed sealed with his seal even though attached by another without authority.
43Perkins's Profitable Book, Sec. 137. "And although a deed be sufficiently written in my name, and sealed by me, but is not delivered by me, or another by my assent, or agreement or commandment, the same shall not bind me; for all this time it is but an escrowl. And if I make such an escrowl, and let it lie by me, and a stranger gets it, it shall not bind me, for it is not yet my deed." intent of the obligee or grantee was not equally important, since delivery for his use made to a third person who had not at the time been appointed by the obligee or grantee as his agent, sufficed.44 Intent to deliver is unquestionably now essential; 45 but the rule which still persists that a deed can not be delivered as an escrow to the obligee or grantee 46 is evidence of an early doctrine that so long as there was a voluntary surrender of possession to the obligee or to some one acting as agent not for the obligor but for the obligee, the intent with which the surrender was made was immaterial, and that even though an intent was expressed and assented to, that the obligor should not be bound, he nevertheless would be so bound.