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 .
409; Jackson v. Lamar, 58 Wash. 383, 108 Pac. 946.
That the presumption is not overthrown by the fact that the possession is not affirmatively shown to have originated prior to the grantor's death, see Blair v. Howell, 68 Iowa, 619, 28 N. W. 199; Melaney v. Cameron, 98 Kan. 620, 159 Pac. 19.
68. Hall v. Bainbridge, 12 Q. B. 699; Hope v. Harman, 16 Q. B. 751 note; Burling v. Paterson, 9 Car. & P. 570; Moore v. Hazel-ton, 9 Allen (Mass.) 102; Howe v. Howe, 99 Mass. 83.
69. See Shelton's Case, Cro.
Eliz 7; Levister v. Hilliard, 57 N. C. 12. "If both parties be present, and the usual formalities of execution take place, and the contract is to all appearances consummated without any conditions or qualifications annexed, it is a complete and valid deed, notwithstanding it be left in the custody of the grantor." 4 Kent's Comm. 455, quoted and applied in Scrugham v. Wood, 15 Wend. (N. Y.) 545; Wallace v. Berdell, 97 N. Y. 13.
70. Xenos v. Wickham, L. R. 2 H. L. 296; Evans v. Grey, 9 L. R. Ir. 539; Clark v. Akers, 16 also been expressed.71 Such a fact might properly, it would seem, be regarded as evidence sufficient to support a finding of delivery, but whether it should be regarded as creating a presumption of delivery, in the sense of requiring a finding of delivery in the absence of countervailing evidence, appears questionable.72
Upon the question whether the fact that an instrument is acknowledged raises a presumption of delivery the cases are few and unsatisfactory. That it does not has occasionally been decided,73 but there are a greater number of decisions to an opposite effect.74 The fact that the instrument is acknowledged in the presence of the grantee might operate to create an inference in this regard which an acknowledgment out of his presence would not create.75 Some weight might also be imkan. 166 (semble); Hall v. Sears, 210 Mass. 185, 96 N. E. 141; Diehl v. Emig, 65 Pa. St. 320; Currie v. Donald, 2 Wash. (Va.) 58.
71. Fisher v. Hall, 41 N. Y. 416; Rushin v. Shield, 11 Ga. 636; Hill v. Mcnichol, 80 Me. 209, 13 Atl. 883.
72. The presence of such a clause has been referred to as some evidence of delivery. Dennis v. Dennis, 119 Mich. 380, 78 N. W. 333. And see, apparently to this effect. Hill v. Merritt, 146 Ga. 307, 91 S. E. 204.
73. Braun v. Monroe, 11 Ky. L. Rep. 324; Den v. Farlee, 21 N. J. L. 279; Kille v. Ege, 79 Pa. St. 15
In Alexander v. De Kermel, 81 Ky. 345, it was decided that acknowledgment did not create a presumption of delivery for the reason that the concurrence of the grantee is needed. This is however another question, that of the necessity of acceptance.
See post, Sec. 463.
74. Boyd v. Slayback, 63 Cal. 493; New Haven Trust Co. v. Camp, 81 Conn. 539, 71 Atl. 788; Baker v. Updike, 155 111. 54, 39 N. E. 587; Burton v. Boyd, 7 Kan. 17; Govin v. De Miranda, 76 Hun (N. Y.) 414, 27 N. Y. Supp. 1019; Tarlton v. Griggs, 131 N. C. 216, 233, 42 S. E. 591; Humphrey v. Hartford Fire Ins. Co., 15 Blatchf. (U. S.) 35.
Occasionally the fact that the instrument was both acknowledged and recorded is referred to as raising a presumption of delivery. Sulzby v. Palmer, 194 Ala. 524, 70 So. 1; Stephens v. Stephens, 108 Ark. 53, 156 S. W. 837: Felker v. Rice, 110 Ark. 70, 161 S. W. 162.
75. See Delaplain v .Grubb, 44 W. Va. 612, 67 Am. St. Rep. 788, 30 S. E. 201; Adams v. Baker, 50 W. Va. 249, 40 S. E. 356; Scrugham v. Wood, 15 Wend. (N. Y.) 545.
Puted to the language of the certificate of acknowledgment, an acknowledgment in express terms that the grantor delivered the instrument being perhaps entitled to more weight than an acknowledgment merely that he executed it.76 The usage of the community as to the time and manner of making acknowledgments might also have a bearing in this regard.77 It would seem on the whole desirable that the courts refrain from the assertion of a presumption of delivery from acknowledgment, but rather leave it to the jury to determine whether the circumstances of the particular case show an intention on the part of the grantor that the instrument shall be legally operative.78 In several cases it is in effect decided that a finding of delivery cannot be based on the fact of acknowledgment alone.79
The question may arise in this connection of the effect of a statute, such as exists in a number of states, making an instrument, if duly acknowledged, admissible without further proof of execution. In one state such a statute has been regarded as placing on the opposite party the burden of showing non-delivery,s" but this does not appear to accord with decisions in other jurisdictions that the authentication of a document sufficient to render it admissible in evidence does not necessarily create a presumption of its execution.81
76. See Blight v. Schenck, 10 Pa. 285; Den v. Farlee, 21 N. J. L. 279; Hawes v. Hawes, 177 111. 409, 53 N. E. 78.
77. In Brann v. Monroe. 11 Ky. L. Rep. 324 it is said that the acknowledgment raises a presumption of delivery because the instrument ought to be delivered before acknowledgment. This can not well be said in all communities.
78. That the acknowledgment Is merely evidence bearing on the question appears to be recognized in Furguson v. Bond, 39
W. Va. 561, 20 S. E. 591; Hutchison v. Rust, 2 Gratt. (Va.) 394.
79. Humphrey v. Hartford Fire Ins. Co., 15 Blatchf. (U. S.) 35; Wiggins v. Lusk, 12 111. 132; Baker v. Updike, 155 111. 54, 39 N. E. 587; Burton v. Boyd, 7 Kan. 17; Govin v. De Miranda, 76 Hun. 414, 27 N. Y. Supp. 1019;
80. Tucker v. Helgren, 102 Minn. 382, 113 N. W. 912.
81. Anderson v. Cuthbert, L03 Ga. 767, 30 S. E. 244; Scott v. Delany, 87 111. 146; Rosa v. Gould, 5 Me. 204; Bogle v. Sulthat the grantor has the instrument recorded, or leaves it with the proper official for record, has been frequently referred to as raising a presumption of delivery.82 This amounts in effect to a statement that such action on the part of the grantor shows, prima facie, an intention on his part that the instrument shall be legally operative. It is in the ordinary case difficult to see any object in leaving the instrument for record, unless it is intended that it shall operate as a conveyance, and the rule of presumption referred to appears to be founded in reason. In a few states only does this view appear to have been actually repudiated, and it is not always clear, in these states, why such an effect is denied to the grantor's conduct in this regard.83 In a very considerable number of cases it is said that the action of the grantor in having the instrument recorded does not show delivery if this was without the knowledge or consent of the grantee,84 but this introlivant, 1 Call. (Va.) 561; Siegfried v. Levan, 6 Serg. & R. 308. See 3 Wigmore, Evidence, Sec. 2135. 82. Lewis v. Watson, 98 Ala. 479, 39 Am. St. Rep. 82; Lee Hardware Co. v. Johnson, 132 Ark. 462, 201 S. W. 289; Ellis v. Clark, 39 Fla. 714, 23 So. 410; Creighton v. Roe, 218 111. 619, 109 Am. St. Rep. 310; Blacken-ship v. Hall, 233 111. 116, 122 Am. St. Rep. 149, 84 N. E. 192; Colee v. Colee, 122 Ind. 109, 17 Am. St. Rep. 345, 23 N. E. 687; Hut-ton v. Smith, 88 Iowa, 238, 55 N. W. 326; Lay v. Lay, - (Ky.) - 66 S. W. 371; Holmes v. Mcdonald, 119 Mich. 563, 75 Am. St. Rep. 430; Griffin v. Howey, 179 Mich. 104, 146 N. W. 210; Ingersoll v. Odendahl, 136 Minn. 428, 162 N. W. 525; Chambers v. Chambers, 227 Mo. 262, 137 Am. St. Rep. 567, 127 S. W. 86; Mitchell's Lessee v. Ryan, 3 Ohio St. 377; Robbins v. Rascoe, 120 N. C. 79, 38 L. R. A. 238, 56 Am. St. Rep. 774; Thompson v. Jones, 1 Head (Tenn.) 574; Davis v. Garrett, 91 Tenn. 147, 18 S. W. 113; Newton v. Emerson, 66 Tex. 142; Bjmerland v. Ely, 15 Wash. 101.