(x) Co. Litt. 36 a.
(y) See further Doe d. Lloyd v. Bennett, 8 Car. & P. 124; Tupper v. Foulkes, 30 L. J. (C. P.) 214.
1 While delivery is essential to the legality of a deed, it may be either actual or verbal; it is sufficient if there be an intention or assent of the mind on the part of the grantor to treat the deed as his: Stewart v. Redditt, 3 Md. 67; McLure v. Colclough, 17 Ala. 89. The possession of the deed by a party claiming under the grantee is evidence of delivery to such grantee until the contrary is shown: Stewart v. Redditt, 3 Md. 67; McMorris v. Crawford, 15 Ala. 271; Rushin v. Shields, 11 Ga. 636; Dawson v. Hall, 2 Mich. 390; Berry v. Anderson, 22 Ind. 36; Rhine v. Robinson, 27 Pa. St. 30; Firemen's Ins. Co. v. McMillan, 29 Ala. 147; Sadler v. Anderson, 17 Tex. 245; Little v. Gibson, 39 N. H. 505; Morris v. Henderson, 37 Miss. 492: Black v. Shreve, 13 N. J. Eq. 455; Black v. Thornton, 30 Ga. 361, 31 Ib. 641; Benson v. Woolverton, 15 N. J. Eq. 158; Tuttle v. Turner, 28 Tex. 759; Newlin v. Beard, 6 W. Va. 110; Billings v. Stark, 15 Fla. 297; Goodwin v. Ward, 6 Baxt (Tenn.) 107; Boberts v. Swearingen, 8 Neb. 363; Stewart v. Stewart, 50 Wis. 445. The acknowledgment and recording of a deed are sufficient to warrant the presumption of a legal delivery, and as the clerk, after he has recorded it, is bound to return it to the grantee, the possession of it by him will be regarded as the possession of the grantee : Stewart v. Redditt, 3 Md. 67. See Critchfield v. Critchfield, 24 Pa. St. 100; Black v. Hoyt, 33 Ohio St. 203. The recording of a deed by the grantor under circumstances which create no suspicion of fraud, may be considered evidence of delivery :
It is not necessary that the delivery should be to the person who is to take the benefit of the deed. The judgment in the case of Doe d. Garnons v. Knight (z), which was delivered by Sir John Bayley after a curia advisari vult, is worthy of a most careful perusal; the learning relating to this subject will be found there clearly collected and discussed. The inference which the Court, of which his *Lordship was the organ, there drew from all the authorities on the subject was, first, "that where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping the deed in the hands of the executing party, nothing to show that he did not intend it to operate immediately, that it is a valid and effectual deed; and that delivery to the party who is to take by it, or any other person for his use is not essential;" secondly, "that delivery to a third person for the use of the party in whose favour a deed is made, where the grantor parts with all control over the deed, makes the deed effectual from the instant of such delivery." 1
(2) 5 B. & C. (11 E. C. L. R.) 671. See Botcherby v. Lancaster, 1 A. &. E. (28 E. C. L. R.) 77; Doe d. Richards v. Lewis, 20 L. J. (C. P.) 177; Fletcher v. Fletcher, 4 Hare, 67.
Buckley v. Buffington, 5 McLean, 457. It is at most, however, prima facie evidence of delivery: Welborn v. Weaver, 17 Ga. 267; Rowell v. Hayden, 40 Me. 582; Berkshire Ins. Co. v. Sturgis, 13 Gray. 177; Boardman v. Dean, 34 Fa. St. 252; Somers v. Pumphrey, 24 Ind. 231; Jackson v. Cleveland, 15 Mich. 94; Robinson v. Gould, 26 Iowa, 89; Kerr v. Birnie, 25 Ark. 225; [which may be rebutted: Knolls v. Barnhart, 71 N. Y. 474; Watson v. Ryan, 3 Tenn. Ch. 40; Union Ins. Co. v. Campbell, 95 111. 267.] From the fact of signing, the jury may presume the sealing and delivery, although there be no reference to sealing in the body of the writing, if there be a seal affixed to the name: Miller v. Binder, 28 Pa. St. 489. The delivery of a deed to the recorder for the grantees is sufficient, if the grantees had agreed to accept: Hoffman v. Mackall, 5 Ohio St. 125; Boody v. Davis, 20 N. H. 140; Moli-neaux v. Coburn, 6 Gray, 124; Bensley v. Atwill, 12 Cal. 231; Ralbec v. Donaldson, 2 Grant, 459; Masterson v. Cheek, 23 111. 72; Prettyman v. Goodrich, 23 111. 330; Houfes v. Schultze, 2 111. App. 196; Young v. Stearns, 3 Ib. 498; Sharp v. Jarrell, 66 Ind. 52; Elsberry v. Boykin, 65 Ala. 336; Moore v. Giles, 49 Conn. 570; Metcalfe v. Brandon, 60 Miss. 685. When a deed was executed, handed to the register, and recorded without the knowledge or assent of the grantees, after which the grantor took and kept possession of it, it was held that in the absence of evidence, that he intended this to constitute a delivery, it was not his deed: Hayes v. Davis, 18 N. H. 600. [See Knolls v. Barnhart, 71 N. Y. 474.]-s.
A deed executed and acknowledged by a commissioner appointed by a decree to sell and convey land in partition proceedings is delivered when the Court confirms his report of sale and conveyance, although he retains manual possession of it: Cocks v. Simmons, 57 Miss. 183. The intent of the grantor and grantee that what was done should operate as a delivery and acceptance of the deed, may be implied from subsequent admissions, conduct, and circumstances, even where the instrument remains in the hands of the grantor: Nichol v. Davidson County, 3 Tenn. Ch. 547; Snow v. Orleans, 126 Mass. 453; Ruck-man v. Ruckman, 32 N. J. Eq. 259; Dukes v. Spangler, 35 Ohio St. 119; Thatcher v. St. Andrew's Church, 37 Mich. 264. The effect of a delivery is not destroyed by a subsequent redelivery to the grantor: Otis v. Spencer, 102 111. 622; Rogers v. Rogers, 53 Wis. 36.
1 As early as the year 1809, the case of Belden v. Carter, 4 Day, 66, was similarly decided in Connecticut upon much the same facts as in Doe v. Knight, and in 1814, twelve years before the decision of that case (which is also reported in 8 D & It. 348, and see Exton v. Scott, 6 Sim. 31), the same conclusions had been arrived at, upon a review of nearly the same authorities, in the case of Souverbye v. Arden, 1 John. Ch. 240, decided by Mr. Chancellor Kent, where the grantor of a voluntary deed having sworn in his answer to a bill filed by the grantees, " that he believed that he and his wife sealed the deed in the presence of two witnesses, and that they may have used the formal words of delivery," it was held that neither the subsequent retention of the possession of the deed by the grantor, nor his subsequent declaration contrary to its tenor, could destroy its efficacy: Young v. Moore, 1 Strobhart, 55; and it is well settled that if the deed has ever been once actually delivered, the retention or the parting with its possession is an immaterial fact: Serug-ham v. Wood, 15 Wend. 545; Jaokson v. Dunlap, 1 Johns. Cas. 114; Brinckeroff v. Lawrence, 2 Sand. Ch. 406; Roosevelt v. Carrow, 6 Barb. 190; Jones V. Jones, 6 Conn. 1ll; Den v. Farlee, 21 N. J. L. 280; Blight v. Schenck, 10 Pa. St. 285; Farrar v. Bridges, 5 Humph. 411.