But upon the question whether there has ever been a delivery, the possession of the instrument may have a material bearing. Delivery is, to a certain extent, a question for the jury, but under the direction of the Court; to what extent may be well exemplified by the case of Doe v. Knight, which was a Rejectment upon a mortgage. Wynne, an attorney, who had been in his lifetime the owner of the premises in question, had received a large sum for his client Garnons, and sent word to him that he had misapplied £10,000 of it, but that he would make him secure. Some years after Wynne wrote with his own hand a mortgage of all his property to Garnons to secure £10,-000, brought it into the presence of his niece, signed and sealed it, said, " I deliver this as my act and deed," and then took it away. In the same month he delivered a parcel to his sister, saying, " Take this, it belongs to Mr. Gar-oons." Some days after, he asked for and took away the parcel, and in a tew days returned it, somewhat reduced in bulk, saying, '" Here, put this by " Some months after this, Wynne died, having first executed a second mortgage of all his property to another person. The parcel was found to contain the mortgage which the niece had witnessed, which was to secure £10,000, together with a statement of the account between Garnons and himself, showing an indebtedness of that amount. The jury were told that if the delivery to the sister was, under the circumstances, a parting with the possession of the deed, and of the power and control over it for the benefit of Garnons, and to be delivered to him either in Wynne's lifetime, or after his death, they should find for the plaintiff", but that if it was merely delivered to her for safe custody as the depositary, and was subject to his future control and disposition, they should find for the defendant. The jury having found for the plaintiff, Sir John' Bayley, in delivering the opinion of the Court refusing a new trial, adverting to the objection that the conclusion which the jury drew, viz.: that the sister held the mortgage free from the control of her brother, had no premises to support it, answered it by saying that although the sister did return it, yet she would have been justified had she refused. (See to the same effect as to the depositary being a trustee for the grantee: Belden v. Carter, 4 Day, 66.) Two questions, therefore, arose; first, whether when a deed is duly executed and formally delivered with appropriate words, but retained by the party executing it, that retention will obstruct the operation of the deed, which question was answered in the negative; and secondly, whether if delivery for such party be essential, a delivery to a third person will be sufficient, if such delivery puts the instrument out of the power and control of the party who executed it, though such third person does not pass the deed to the party benefited until after the death of the grantor. This question was answered in the affirmative; and both of these propositions are perfectly settled law on both sides of the Atlantic: Belden v. Carter, 4 Day, 66; Johnson v. Ruggles, 13 Johns. 288; Brown v. Brown, 1 W. & M. 325; Bryan v. Wash, 2 Gil. 557; Merrills v. Swift, 18 Conn. 257; and see many cases collected in the opinion of the Court in Hulick v. Scovil, 4 Gil. 159.
Before quitting the subject of delivery, it is right to explain the distinction between a deed, ordinarily so
The grantor's placing the deed upon record-his putting it in the post-office directed to the grantee-his bringing an action for the consideration-money-the grantee's having possession of the deed-or of the premises consistently with the tenor of the deed-constitutes prima facie evidence, upon which the jury may presume that the deed was delivered: Porter v. Cole, 4 Me. 25; Ward v. Lewis, 4 Pick. 520; Mills v. Gore, 20 Ib. 28; Games v. Stiles, 14 Pet. 322; Collins v. Parker, 1 Strobh. 25; Houston v. Staunton, 11 Ala. 412; M'Kinney v. Rhoads, 5 Watts, 343; Rigler v. Cloud, 14 Pa. St. 364; Blight v. Schenck, 10 Ib. 285, Gardner v. Collins, 3 Mason, 401. So, where a deed was left in the hands of the magistrate before whom it was acknowledged, and was afterwards taken away by the brother of the grantee for him, this was held sufficient evidence to go to the jury, from which they might presume delivery: Arrison v. Harmstead, 2 Pa. St. 191; while, on the other hand if the deed were put into the post-office, directed net to the grantee nor his termed, and an escrow (a). An escrow is a deed delivered conditionally to a third person, to be delivered to agent, but to an agent of the grantor, it would be error to leave the question of delivery to the jury, as there would be no evidence from which delivery could be presumed: Elsey v. Metcalf, 1 Denio, 323; White v. Baily, 14 Conn. 271. So, where there were neither acts done nor words spoken from which a delivery could be inferred, and the possession of the deed by the party seeking to take advantage of it was accounted for by his having taken possession of all the papers of the grantor after his death, it was held error to leave the question of delivery to the jury: Clayton v. Liverman, 4 Dev. & Bat. 238.
(a) Shepp. Touch. 58.
It was suggested by the English editor that the qualifications adopted in Doe v. Knight had been overlooked by the more recent authorities, and that the doctrine of that case has been of late more broadly laid down. But it is believed that they do not either narrow or enlarge the rules adopted in that case, being (with but one exception, Grudgeon v. Gerrard) cases of voluntary settlements in favor of near relatives, or the like, sought to be enforced in equity, as to which, it has been repeatedly held, that Courts will go farther in the presumption of a delivery than in ordinary cases of conveyance: Bryan v. Wash, 2 Gilm. 557; Brown v. Brown, 1 W. & M. 325; Souverbye v. Arden, etc. In Fletcher v. Fletcher, 4 Hare, 67, cited by him, a testator executed a voluntary covenant with trustees, that in case his two natural sons should survive him, his executor should pay to the trustees £60,000 for such of the sons as should be living at the time of his death. This instrument, which purported to be regularly executed, was found among the testator's papers some years after his death, and upon a bill filed by the surviving son to have the covenant enforced, the stress of the argument was laid upon the deed being voluntary, executory, and testamentary, and as such revoked by the subsequent will; and Vice-Chancellor Wigram, after answering these objections, said, "The only other question arises from the circumstances of the instrument having been kept in the possession of the party; does that affect its legal validity ? In the case of Dillon v. Coppin, 4 Myl. & Cr. 660, I had occasion to consider that subject, and I took pains to collect the cases upon it. The case of Doe v. Knight shows, that if an instrument is sealed and delivered, the retainer of it by the party in his possession does not prevent it from taking effect. No doubt the intention of the parties is often disappointed by holding them to be bound by deeds which they have kept back, but such unquestionably is the law." The cases thus referred to were Barlow v. Heneage, Prec. Ch. 211; Lady Hudson's Case, Ib. 235; Clavering v. Clavering, 2 Vernon, 473, Dom. Proc, 1 Bro. P. C. 122; Broughton v. Broughton, 1 Atkyns, 625; Doe v. Knight, Sear v. Ashwell, 3 Swans. 411; Worrall v. Jacob, 3 Meriv. 256; and Exton v. Scott, 6 Sim. 31; the first four of which were all cited and reviewed in Doe v. Knight, and the language used in that case by Sir John Bayley, and qloted supra, was cited by Mr. Wigram at length.