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 .
57. Ante, Sec. 434, note 68.
The hands of the grantor, lacks the name of a grantee, becomes valid if the name is subsequently inserted by an agent acting under oral authority from the grantor, these decisions apparently involving the assumption that the delivery of the deed is made by such agent, since delivery could not be made so long as the instrument, lacking the name of the grantee, was a legal nullity, and there is no act by the grantor, after the insertion of such name, which can be referred to as indicative of an intention to deliver.
The view indicated in the decisions referred to, that an agent acting under oral authority may make delivery, is presumably based on the misconception, previously referred to, that delivery of a deed means merely the manual transfer of the instrument. That an agent in possession of the instrument in behalf of the grantor is in a position to hand it to the grantee, whether his agency is based on a written or an oral authority, is sufficiently obvious, and because he is in a position to do this it is assumed that he has the power and authority to make delivery of the instrument on behalf of the grantor. But delivery of the instrument involves more than a manual transfer thereof, and the fact that the agent is in a position to make such a transfer is no reason for assuming that he has legal authority to express, by word or act, an intention on the part of the grantor that the instrument shall become legally operative. It no doubt frequently occurs that the grantor hands the completed instrument to an agent, with oral instructions to hand it to the grantee upon some subsequent event, ordinarily the payment of the purchase money. In such case, however, the delivery, it is conceived, is properly to be regarded as a conditional delivery made by the grantor himself, a delivery made by him, that is, at the time of handing the instrument to his agent, conditioned however upon the subsequent payment of the purchase money or occurrence of the other event named, on which the agent was to hand the instrument to the grantee. Upon the satisfaction of the condition the delivery by the grantor becomes effective, as in the case of any other conditional delivery,58 and the mere act of the agent in handing the instrument to the grantee is not technically speaking, a delivery thereof, it having already been delivered.
Since the delivery must be made by the grantor, or by the grantor's agent, in order to be effective, there can be no delivery after the grantor's death. A deceased grantor can obviously not make delivery, and the agent's authority necessarily comes to an end upon the death of the principal.59
- Retention of control. It is not infrequently said that there is no delivery if the grantor still retains control or dominion over the deed..60 Such a statement is somewhat ambiguous. The mere fact that the grantor retains possession of the instrument is, as above indicated,61 not incompatible with delivery, and yet it can hardly be said that, having possession of the deed, he has no dominion or control thereover. The statement may mean that the fact that the grantor has a right to demand the physical possession of the instrument, or to refuse to relinquish such possession, conclusively shows that the instrument has not been delivered since, after delivery, the grantee, and not the grantor, is entitled to control the possession of the instrument, it being his muniment of title. Or it may mean that the fact that the grantor has a right to determine whether the instrument shall have a legal operation shows that it has not been delivered, since after delivery he has no such right. But since the question whether the grantor has the right of control as regards either possession of the instrument or its legal operation depends on whether there has been a deliverv, the statement re-ferred to amounts to little more than a statement that, so long as the instrument is subject to the grantor's control by reason of lack of delivery, the instrument has not been delivered. The statement is unquestionably correct, but appears to be of questionable utility, and its frequent repetition is calculated to obscure, rather than to clarify, the nature of delivery.
58. Post, Sec. 462.
59. Mortgage Trust Co. of Pennsylvania v. Moore, 150 Ind. 465, 50 N. E. 72; Schaeffer v. Anchor Mut. Fire Ins. Co., 113 Iowa, 652, 85 N. W. 985; Colyer v. Hyden, 94 Ky. 180, 21 S. W. 868; Taft v. Taft, 59 Mich. 185, 60 Am. Rep. 291; Givens v. Ott. 222 Mo. 395, 121 S. W. 23; Meikle v. Cloquet 44 Wash. 513, 87 Pac. 841.
60. See e. g. Tarwater v. Going, 140 Ala. 273, 37 So. 330; Porter v. Woodhouse, 59 Conn. 568, 13 L. R. A. 64, 21 Am. St. Rep. 131, 22 Atl. 299; Rutledge v. Montgomery, 30 Ga. 899; Cal-lerand v. Piot, 241 111. 120, 89 N. E. 266: Pethel v. Pethel, 45 Ind. App. 664, 90 N. E. 102; Kirby v. Hulette, 174 Ky. 257, 192 S. W. 63; Renehan v. Mc-avoy, 116 Md. 356, 38 L. R. A. (N. S.) 941, 81 Atl. 586; Joslin v. Goddard, 187 Mass. 165. 72 N. E. 948; Taft v. Taft, 59 Mich. 185, 60 Am. Rep. 291; Ingersoll v. Odendahl, 136 Minn. 428, 162 N. W. 525: Hall v. Waddill. 78 Miss. 16, 27 So. 936, 28 So. 831; Peters v. Berkemeier, 184 Mo. 393, 83 S. W. 747; Baker v. Haskell, 47 N. H. 479, 93 Am. Dec. 455; Fisher v. Hall, 41 N. Y. 416; Gaylord v. Gaylord, 150 N. C. 222, 63 S. E. 1028; Arne-gaard v Arnegaard, 7 N. D. 475, 41 L. R. A. 258; Ball v. Foreman, 37 Ohio St. 139; Eckman v. Eckman, 55 Pa. St. 269; Johnson v. Johnson, 24 R. I. 571, 54 Atl. 378; Merck v. Merck, 83 S. C. 329, 137 Am. St. Rep. 815, 65 S. E. 347; Cassidy v. Holland, 27 S. D. 287, 130 N. W. 771: Gaines v. Keener, 48 W. Va. 56, 35 S. E. 856; Butts v. Richards, L52 Wis. 318, 140 N. W. 1.
- Presumptions as to delivery. In connection with the question of the delivery of a deed, various rules of presumption have been judicially asserted, that is, particular states of fact have been regarded as showing prima facie, that the instrument has or has not been delivered.