The question of delivery depends in part upon the relation of the person in whose custody and possession the instrument is, to the instrument itself, or to the parties thereto. A written instrument may be, (1) retained by the party executing it; (2) delivered to his agent; (3) delivered to a person who is not a party to the instrument, and who does not take as the agent of either party, or who may be said to take as the agent of both parties; (4) delivered to the agent of the adversary party; or, (5) delivered to the adversary party himself. The effect of each of these states of fact must, therefore, be considered. A written contract which is executed by one party and retained in his custody, and of which the possession and control has never been surrendered to the adversary party, is of no validity.1 The same principle makes invalid a deed which is executed by the grantor and retained by him in his possession,2 or which is placed in the possession of one of two or more joint grantors, as where a deed executed by a husband and wife is put in the custody of the husband,3 or of the wife,4 though with the expectation of delivering it at a later time. If an instrument is executed by both parties thereto, and is intended to take effect, a valid delivery exists if it is left in the custody of either of such parties.5 Under any other rule an instrument executed by both adversary parties could never be delivered between them.

7Hoyt v. McLagan, 87 la. 746; 55 X. W. 18.

8 Ashford v. Prewitt, 102 Ala.

264; 48 Am. St. Rep. 37; 14 So. 663.

9Chadwick v. Tatem, 9 Mont. 354; 23 Pac. 729.