Since so long as the condition is not satisfied, the title does not pass, it results that when it becomes assured that the condition will never be satisfied, the instrument loses all possible efficacy. In such case the grantor will ordinarily desire to have the instrument returned to him, to preclude the possibility of its afterwards being utilized to his detriment, but the depositary may properly retain the instrument so long as there is the slightest uncertainty as to the ultimate satisfaction of the condition. Occasional expressions86 to the effect that the action of the depositary in retaining the instrument or returning it to the grantor has in itself some effect on the rights of the grantor and grantee are, it is submitted, erroneous. If the condition can never be satisfied, the instrument can never be operative, regardless of who has the possession, and if the condition is satisfied, that the instrument has in some way passed into the possession of the grantor does not prevent its operation.87

Min. Co. v. High Roller Min. Co., 25 Utah, 282, 71 Pac. 77. In these two cases a significance is imputed to the "second delivery" to which it is not entitled.

84. Dettmer v. Behrens, 106 Iowa, 585, 68 Am. St. Rep. 32G; Nolan v. Otney, 75 Kan. 311, 9 L. R. A. (N. S.) 317, 89 Pac. 690; Stockwell v. Shalit, 204 Mass. 270, 90 N. E. 570; Jackson v. Jackson, 67 Ore. 44, Ann.

Cas. 1915C, 373, 135 Pac. 201; Gammon v. Bunnell, 22 Utah, 421, 64 Pac. 958.

85. Taft v. Taft, 59 Mich. 185, 60 Am. Rep. 291, approved in Culy v. Upham, 135 Mich. 131, 106, Am. St. Rep. 388.

86. Brown v. Allbright, 110 Ark. 394, Ann. Cas. 1915D, 692, 161 S. W. 1036; Hall v. Yaryan, 25 Idaho, 470, 138 Pac. 339.

87. Ante, this section, note 69.

The cases upon the question of the burden of proof in connection with a conditional delivery are few and not entirely satisfactory. In view of the ordinary presumption of delivery from the grantee's possession of the instrument,88 it would seem that, if the grantee has such possession, it is for the grantor to show that though the instrument was delivered, the delivery was conditional,88a and for the grantee to show that the condition was satisfied.88b have regarded the reference to death in such case, in connection with the delivery, as in some way affecting the operation of the conveyance, without, however, any entirely satisfactory elucidation of the matter.

- Delivery conditioned on death. Not infrequently the grantor hands the instrument to a third person with a request or direction that he hand it to the grantee named upon the grantor's death, or otherwise indicates his intention that it shall become fully operative only upon his death. Such action has usually been regarded as involving a delivery of a conditional or quasi-conditional character, in that an instrument so delivered does not operate in exactly the same manner in which it would have operated had there been no reference to the grantor's death. There is, however, a a obvious distinction between such a delivery and an ordinary conditional delivery. In the latter case the condition may never be satisfied, while in the former the condition, that of death, must necessarily be satisfied. A delivery conditioned upon a condition which cannot fail to be satisfied is strictly speaking, not a conditional delivery. The courts might have taken this view, that such a delivery is not properly subject to any condition, and that consequently the instrument operates exactly as if there had been no reference to the grantor's death, but this they have not done. They

88. Ante, Sec. 461, note 67.

88a. Evans v. Gibbs, 6 Humph. (Tenn.) 405; Union Bank v. Ridgely, 1 Harr. & G. (Md.) 324; Black v. Shreve, 13 N. J. Eq. 455. But see Kavanaugh v.

Kavanaugh. 260 111. 179, 103 N. E. 65.

88b. Black v. Shreve. 13 N. J. Eq. 455.; Kavanaugli v. Kava-naugh, 260 III. 179, 103 N. E. 65. Contra, Swain v. Mcmillan. 30 Mont. 433, 76 Par. 943.

The courts have not infrequently said that, upon such a delivery, the title passes immediately, subject to a life estate in the grantor,89 or with the right of possession postponed.90 If this means that a conveyance so delivered creates two estates, a particular estate for life in the grantor and an estate in the nature of a remainder or reversion in the grantee, the propriety of the statement appears to be somewhat open to question. Thus to give to a conveyance in terms creating only an estate in fee simple, the additional effect of creating an estate for life in the grantor, does considerable violence to its language, and furthermore it gives to the matter of delivery an operation to which it is not entitled. The function of delivery is to determine whether the instrument shall be operative, not the estate or estates which the instrument shall create when it does become operative.

Another theory which may be suggested as to such a delivery with reference to the grantor's death is that, by reason of the language used at the time of handing the instrument to its custodian, the conveyance, though in terms creating a vested estate in fee simple in the grantee, creates merely a prospect of an estate, which will ripen into a vested estate only on the death of the grantor, as if a springing use had been created, the fee simple remaining in the meanwhile in the grantor. Such a result may be attained by regarding a delivery with reference to the grantor's death as but one case of conditional delivery, ignoring the fact that the condition named, that of death, is certain to be satisfied. This involves a fiction, it is true, but it is a beneficial fiction, conducive to simplicity and harmony, as bringing into a single category all the cases of qualified delivery.

89. Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 Pac. 338; Hunt v. Wicht, 174 Cal. 205, 162 Pac. 639; Grilley v. Atkins, 78 Conn. 380, 4 L. R. A. (N. S.) 816, 112 Am. St. Rep. 152, 62 Atl. 337; Wheeler v. Loesch, 51 Ind. App. 562, 99 N. E. 502; Rowley v. Bowyer, 75 N. J. Eq. 80, 71 Atl. 398; Arnegaard v. Arnegaard, 7 N. D. 475, 41 L. R. A. 258, 75 N. W.