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 has been said that the fact that the instrument remains in the possession of the grantor raises a presumption that it has not been delivered.62 This appears cated, the final expression, subsequent to the signing and sealing, of an intention that the instrument shall be legally operative, and, whatever the form of the instrument, it cannot well constitute the basis for an inference that, subsequent to the signing and sealing, such intention was expressed.65
To be merely another way of saying that delivery is an affirmative fact, the burden of proving which is upon the person alleging it. If he cannot support this burden by evidence of a change of possession of the instrument, he must support it by other evidence.63
61. Ante, this section, note 43.
62. Donahue v. Sweeny, 171 Cal. 388, 153 Pac. 708; Kavan-augh v. Kavanaugh, 260 111. 79, 103 N. E. 65; Shetler v. Stewart,
133 Iowa, 320, 107 N. W. 310, 110 N. W. 582; Dunbar v. Meadows, 165 Ky. 275, 176 S. W. 1167; Dudley v. Nickerson, 107 Me. 25, 78 Atl. 100; Kanawell v.
While a presumption of non delivery is said ordi-arily to arise from the grantor's possession of the instrument, no such presumption arises, it is said, if the grantor, by the terms of the instrument, reserves a life estate in the property, for the reason that there is no object in such a reservation unless the instrument is to operate before the grantor's death.64 That such a reservation shows that the instrument was prepared with the intention that its operation should not be postponed till the grantor's death may be conceded, but it is difficult to see what bearing this has on the question of delivery, since the form of the instrument, even without .the reservation, shows that it was prepared with this intention. It might as well be said that any instrument in the form of a conveyance inter vivos as distinguished from a will, though still in the possession of the grantor, is to be presumed to have been delivered, since it would not have been prepared in that form had it not been intended to operate before the grantor's death. Delivery is, as above indimiller, - Pa. - 104 Atl. 861; Cas-sidy v. Holland, 27 S. D. 287, 130 N. W. 771; Butts v. Richards, 152 Wis. 318, 140 N. W. 1.
63. See Jenkins v. Southern R. Co., 109 Ga. 35, 34 S. E. 355; Burton v. Boyd, 7 Kan. 1; Powers v. Russell, 13 Pick. (Mass.) 69; Bisard v. Sparks, 133 Mich. 587, 95 N. W. 728; Ligon v. Barton, 88 Miss. 135, 40 So. 555; Tyler v. Hall, 106 Mo. 313, 27 Am. St. Rep. 338; At-wood v. Atwood, 15 Wash. 285, 46 Pac. 240; Gaines v. Keener, 48
W. Va. 56, 35 S. E. 856; Butts v. Richards, 152 Wis. 318. 44 L. It. A. (N. S.) 528, Ann. Cas. 1914C, 854, 140 N. W. 1.
64. Hill v. Kreiger, 250 111. 408, 95 N. E. 468; Buck v. Garber, 261 111. 378, 103 N. E. 1059; Collins v. Smith, 144 Iowa, 200, 122 N. W. 839; Sneathen v. Sneathen, 104 Mo. 201, 24 Am. St. Rep. 326, 16 S. W. 497; Williams v. Latham, 113 Mo. 165, 20 S. W. 99; Ball v. Foreman, 37 Ohio St. 132.
It has furthermore been said that the grantor's retention of the instrument does not give rise to a presumption of non-delivery if he retains an interest in the property and it is consequently to his advantage that the instrument be preserved.66 It is, however, difficult to see that, in the ordinary case, it is to his advantage that the instrument be preserved, if its effect is to divest him of either the whole interest or a partial interest in the property. He would in either case be better off if the instrument were no longer available for the purpose of asserting his grantee's rights thereunder.
That the instrument is in the possession of the grantee named therein is usually referred to as raising a presumption that it has been delivered,67 based, it would seem, on the probability that the grantor gave him possession of the instrument, and the improbability that the grantor would vest him with such a muniment of title unless he intended that the title should pass.
65. See Colyer v. Hyden, 94 Ky. 180, 21 S. W. 868; Whitney v. Dewey, 10 Idaho, 633, 69 L. R. A. 572, 80 Pac. 1117.
66. Blakemore v. Byenside, 7 Ark. 504; Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Scrug-ham v. Wood, 15 Wend. (N. Y.) 545.
67. Games v. Stiles, 14 Pet. (U. S.) 322, 10 L. Ed. 476; Simmons v. Simmons, 78 Ala. 365; Thompson v. Mckenna, 22 Cal. App. 129, 133 Pac. 512; Hill v. Merritt, 146 Ga. 307, 91 S.
E. 204; Inman v. Swearingen, 198 111. 437, 64 N. E. 1112; Hathaway v. Cook, 258 111. 92, 101 N. E. 227; Hild v. Hild, 129 Iowa, 649, 113 Am. St. Rep. 500; Fish v. Poorman, 85 Kan. 237, 116 Pac. 898; Ball v. Sandlin, 176 Ky. 537, 195 S. W. 1089; Valentine v. Wheeler, 116 Mass. 478; Barras v. Barras, 192 Mich. 584, 159 N. W. 147; Wilson v. Wilson, 85 Neb. 167, 122 N. W. 856; Pierson v. Fisher, 48 Ore. 223, 85 Pac. 621; Painter v. Campbell, 207 Pa. 189, 56 Atl.
In England and Massachusetts there are decisions to the effect that the signing and sealing of the instrument in the presence of an attesting witness raises a presumption of delivery,68 the effect of which presumption would be to justify a finding of delivery, although the instrument is still in the grantor's possession, upon evidence that it was signed and sealed by him. Such a presumption does not appear to have been recognized elsewhere, and it may perhaps be regarded as based on a recognized practice, in the jurisdictions named, of making delivery of the instrument by a declaration to that effect in the presence of witnesses at the time of signing and sealing. The propriety of such an inference of delivery from the mere fact of signing and sealing might indeed depend on the particular circumstances of the case, for instance on the presence or absence of the grantee. That the grantor signs and seals the instrument in the presence of the grantee may justify an inference of delivery, while his doing so in the grantee's absence may not.69
That the attestation clause, under which the witnesses write their names, recites the delivery of the instrument, has occasionally been regarded as creating a presumption of delivery,70 while a contrary view has