This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
§ 58. In the present chapter, which closes our consideration of the three first sections of the statute, it is proposed to inquire how far, if at all, an estate in land may be still created or transferred by manual or symbolical acts of the parties, without writing, and what are conveyances by act and operation of law; using the term conveyances in a somewhat restricted sense, not embracing the making, surrender, or assignment of leases, as that branch of conveyances has been already treated under the sections and clauses of the statute having particular reference to them.
§ 59. The general principle that cancelling, altering, or redelivering the title-deeds of corporeal interests in lands does not operate to revest the land in the grantor is too familiar to require the citation of authorities. Lord Chief Justice Eyre declared in the case of Bolton v. The Bishop of Carlisle,1 that he would hold the law to be the same with respect to incorporeal hereditaments, which lie in grant and were conveyed without livery; but undoubtedly the weight of opinion is against this suggestion.2 For things which are said to lie in grant are conveyed by means of the grant; the deed itself is the essential instrumentality of transfer; but in regard to corporeal estates, livery of seisin is that instrumentality, and the deed is only the written evidence of it. The principle, as above expressed, may be illustrated by the cases in which a deed of land is altered in some material respect by the grantee. In these, it is held, that as to him or those taking from him, with notice of the alteration, the deed is avoided, and neither he nor they can avail themselves of it in evidence, nor supply the want of it by parol testimony.l But, though such alteration be with a fraudulent intent, yet if there be a counterpart of the original deed in the hands of the grantor, the grantee may sustain himself upon it and use it to prove his title;2 the alteration having no effect to devest the title,3 but only to prevent the party making it, and those who claim under him with notice, from using it for the purposes of a deed, by proving property by it or obtaining redress upon its covenants. § 60. There is, however, a class of cases in which, while the general principle, as above stated, is carefully recognized, the courts in some of the States have allowed a certain effect to the cancellation of title-deeds or their redelivery to the grantor, which appears at first sight to be in contravention of the statute. Thus, where a deed has been given and not yet recorded, and the grantee, wishing to sell the estate, delivers up and cancels his deed, and the grantor executes a new deed to the purchaser, the title of the latter is good. Such, at least, is the doctrine held in most of the New England States, and in New Jersey and Alabama; though it seems not to be accepted in Connecticut, New York, or Kentucky.4 In the first-named States, the general principle is laid down that the voluntary surrender or cancellation of an unrecorded deed, with intent to revest the estate in the grantor, operates as a reconveyance to him;1 but such a transaction is good only when fairly conducted, and when the rights of third parties have not intervened.2 It has been held in Massachusetts that it was good under these conditions, though the first grantee had been in possession for thirteen years; but this was an early case and does not seem reconcilable with the great number of cases, some of which are Massachusetts cases, holding that when real estate has once vested by transmutation of possession it cannot be devested by cancelling or surrendering the deed.3
1 Bolton v. Bp. of Carlisle, 2 H. Bl. 259.
2 Gilbert Evid. 1ll, 112; Buller N. P. 267; Roberts on Frauds, 251.
1 Chesley v. Frost, 1N.H. 145; Barrett v. Thorndike, 1 Greenl. (Me.) 73; Jackson v. Gould, 7 Wend. (N. Y.) 364.
2 Lewis v. Payn, 8 Cowen (N. Y.) 71.
3 Rifener v. Bowman, 53 Pa. St. 313.
4 Holbrook v. Tirrell, 9 Pick. (Mass.) 105; Nason v. Grant, 21 Me. 160; Patterson v. Yeaton, 47 Me. 314; Mussey v. Holt, 24 N. H. 248; Farrar v. Farrar, 4 N. H. 191; Tomson v. Ward, 1 N. H. 9; Dodge v. Dodge, 33 N. H. 487; Faulks v. Burns, 1 Green (N. J.) Ch. 2 50; Mallory v. Stodder, 6 Ala. 801. See Cravener v. Bowser, 4 Pa St. 259; Gilbert v. Bulkley, 5 Conn. 262; Coe v. Turner, 5 Conn. 86; Holmes v. Trout, 7 Peters (U. S.) 171; Raynor v. Wilson, 6 Hill (N. Y.) 469; Parker v. Kane, 22 How. (U. S.) 1.
§ 61. The principle on which the doctrine of the cases referred to in the preceding section is supported, is explained, and shown to be not irreconcilable with the statute, by Chief Jutice Shaw, who said, in delivering the judgment of the Supreme Court of Massachusetts, "Such cancellation does not operate by way of transfer, nor, strictly speaking, by way of release working upon the estate, but rather as an estoppel arising from the voluntary surrender of the legal evidence, by which alone the claim [of the first grantee] could be supported."4 The same ground is taken, and perhaps more precisely stated, by the Supreme Court of New Hampshire: " The grantee having put it out of his power to produce the deed, the law will not allow him to introduce secondary evidence in violation of his undertaking, and to defeat the fair intention of the parties."5 But in the same court, in a case where an unrecorded deed was delivered back, not with the intent that the land should become the grantor's, but that another deed to a third party should be substituted, it was held that the grantee might prove contents of his deed, the transaction being in good faith, and the right of third parties not having intervened.1 Again, the cancellation of a deed unrecorded and before possession taken, may be said to destroy the grantee's inchoate title leaving the grantor in possession of his former title;2 or if it does not have that effect, it at least places it in the power of the grantor to sell or encumber the land, and a bond fide purchaser or encumbrancer without notice would have the paramount interest.3 In any view, however, we may safely say that to allow validity to such transactions, according to the fair intentions of the parties, is not necessarily an infraction of the Statute of Frauds.