This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
It being conceded that even a voluntary transfer of the instrument by the grantor to the grantee does not involve a delivery if not with the intention that the instrument shall be legally operative, it necessarily follows that the instrument cannot be regarded as having been delivered merely because the grantee has acquired possession thereof without the grantor's consent.49 And it has been decided that the fact of non delivery in such case may be asserted even as against a subsequent bona fide purchaser, who purchased in reliance on the grantee's possession of the instrument.50
48. 4 Wigmore, Evidence, Sec. 2405.
49. Bender v. Barton, 166 Ala. 337, 52 So. 26; Bowers v. Cottrell, 15 Idaho, 221, 96 Pac. 936; Lundy v. Mason, 174 111. 505. 51 N. E. 614; Schaefer v. Purvlance. 160 Ind. 63, 66 N. E. 154;. Hintz v. Hintz, 175 Iowa, 392, 156 N. W. 878; White v. Holder - (Ky.)-118 S. W. 995; Westlake v. Dunn, 184 Mass. 260, 100 Am. St. Rep. 557; Gardiner v. Gardiner, 134 Mich. 90, 95 N. W. 973; Allen v. Ayer, 26 Ore. 589, 39 Pac. 1; King v. Diffey - Tex. Civ. App.- 192 S. W. 262.
50. Gould v. Wise, 97 Cal. 532, 32 Pac. 576, 33 Pac. 323; Henry v. Carson, 96 Ind. 412; Ogden v. Ogden, 4 Ohio St. 458; Burns v. Kennedy, 49 Ore. 588, 90 Pac. 1102; Van Amrlnge v. Morton, 4 Whart. (Pa.) 382; Stefiian v. Milmo Nat. Bank, 69 Tex. 513. 6 S. W. 823; Tyler Building & Loan Ass'n v. Baird & Scales.- Tex. Civ. App. - . 165 S. W. 542.
There are, however, dicta to the effect that the grantor may, by reason of his lack of care in the custody of the instrument, be estopped, in favor of a bona fide purchaser, to deny its delivery.51
Apart from any question of bona fide purchase, there are a number of'decisions to the effect that an instrument of conveyance, the possession of which has been improperly acquired by the grantee named therein, may be subsequently made operative by the grantor's recognition of the title as being in such grantee.52 In connection with these decisions the courts ordinarily speak of such recognition as involving a "ratification" of the deed or of the delivery, but what actually occurs is, it is conceived, a delivery by the grantor, that is, an expression of an intention by him, not previously expressed, that the instrument, which has already passed into the grantee's hands, shall take effect as a transfer of title. An instrument which is inoperative as a conveyance for lack of legal delivery cannot be made operative by ratification, there being indeed, in such case, nothing to ratify. And likewise a physical transfer of the instrument, which lacks all legal significance because not made by one authorized to make delivery, cannot thereafter, by ratification, be transformed into a legal delivery, that is, an expression of intention that the instrument shall be legally operative.
51. Gould v. Wise, 97 Cal. 532. 32 Pac. 576, 33 Pac. 323; Alexander v. Welcker, 141 Cal. 302, 74 Pac. 845; Allen v. Ayer, 26 Ore 589, 39 Pac. 1; Merck v. Merck, 83 S. Car. 329, 137 Am. St. Rep. 815, 65 S. E. 347; Steffian v. Milmo Nat> Bank, 69 Tex. 513, 6 S. W. 823; Garner v. Risinger, 35 Tex. Civ. App. 378, 81 S. W. 343; Tisher v. Beckwith, 30 Wis. 55, 11 Am. Rep. 546; Laughlin v. Calumet & Chicago Canal & Dock
Co., 13 C. C. A. 1, 65 Fed. 441. See post, Sec. 462, note 42.
52. Whitney v. Dewey, 10 Idaho, 633, 69 L. R. A. 572, 80 Pac. 1117; Phelps v. Pratt, 225 111. 85, 9 L. R. A. (N. S.) 945, 80 N. E. 69; Harkness v. Cleaves, 113 Iowa, 140, 84 N. W. 1033; Mcnulty v. Mcnulty, 47 Kan. 208, 27 Pac. 819; Pannell v. Askew, - Tex. Civ. App. - , 143 S. W. 364.
- Delivery by agent. The delivery of an instrument is a part of the execution thereof,53 and in so far as a written or sealed authority may be necessary to enable one to sign or seal an instrument as an agent acting in behalf of the grantor, such an authority is, it is conceived, necessary to enable one to deliver the instrument as such agent.54 It would be strange if the final expression of intention, which makes the instrument legally operative, could be given by one acting under an oral authority, while the merely preliminary acts of signing and sealing can be performed by an agent only when acting under authority in writing. There are, however, to be found occasional judicial statements that a deed may be delivered by one acting under oral authority,55 and that this may be done is not infrequently assumed by the courts.56 That an oral authority is sufficient for this purpose appears to be involved in the decisions, rendered in a number of states,57 that a conveyance which, at the time it leaves
53. See Goodlet v. Goodman Coal & Coke Co., 192 Fed. 775, 113 C. C. A. 61; Clark v. Child, 66 Cal. 87, 4 Pac. 1058; Bowers v. Cottrell, 15 Idaho, 221, 96 Pac. 936; Colee v. Colee, 122 Ind. 109, 17 Am. St. Rep. 345; Mcandrew v. Sewell, 100 Kan. 47, 163 Pac. 653; Tucker v. Helgien, 102 Minn. 382, 113 N. W. 912; and other cases cited in "Words & Phrases" under "Execute."
54. That an agent cannot deliver a deed without authority under seal is explicitly decided in Hibblewhite v. M'morine, 6 Mees. & W. 200; Powell v. London & Provincial Bank (1893), 2 Ch. 555.
So it is said in Sheppard'g Touchstone at p. 57, that "where one person delivers an instrument as the act of another person, who is present, no deed conferring an authority is requisite. But a person cannot, unless authorized by deed, execute an instrument as the act of a person who is absent."
55. White v. Duggan, 140 Mass. 18, 54 Am. Rep. 437; Macurda v. Fuller, 225 Mass. 341, 114 N. E. 366; Lafferty v. Lafferty, 42 W. Va. 783, 26 S, E. 262. See Huff-cut, Agency (2nd Ed.) p. 38.
56. Sturtevant v. Sturtevant. 116 111. 340, 6 N. E. 428; Furenes v. Eide, 109 Iowa, 511, 77 Am. St. Rep. 545, 80 N. W. 539; Conway v. Rock, 139 Iowa, 162. 117 N. W. 273; Santaquin Min. Co. v. High Roller Min. Co., 25 Utah 282, 71 Pac. 77; Spring Garden Bank v. Hillings Lumber Co., 32 W. Va. 357, 3 L. K. A 583.