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 .
83. See Egan v. Horrigan, 96 Me. 46. In Mcmanus v. Commow, 10 N. D. 340, 87 N. W. 8, the decision to this effect is based on an ill-advised statute undertaking to state what constitutes delivery. In Massachusetts this position appears to be in part the result of the view (post, Sec. 463) that there must be knowledge of or assent to the conveyance on the part of the grantee. (See Maynard v. Maynard, 10 Mass. 456; Samson v. Thornton, 3 Mete. 275), and in part of the duces another question, that of the necessity of acceptance of a conveyance, which properly calls for separate discussion,85 and these cases cannot generally be regarded as involving a repudiation of the view that the action of the grantor in having the instrument recorded shows, prima facie, an intention that it shall take effect as a conveyance. The presumption of delivery, based on the action of the grantor in having the instrument recorded, is recognized as being subject to rebuttal by evidence that he did not intend the instrument to operate as a conveyance.86
In several cases the fact that the purpose of the conveyance was merely to prevent the assertion or collection of a claim by a third person against the grannotion that delivery of a deed means the physical transfer of the instrument. Hawkes v. Pike, 105 Mass. 560, 7 Am. St. Rep. 554; Barnes v. Barnes, 161 Mass. 381, 37 N. E. 379. The legislature has now intervened by making the record of a conveyance conclusive evidence of delivery in favor of a bona fide purchaser. See Rev. Laws, c. 127, Sec. 5.
84. Younge v. Guilbeau, 3 Wall. (U. S. 636, 18 L. Ed. 262; Parmelee v. Simpson, 5 Wall. (U. S.) 81, 718 1.. Ed. 542; Knox v. Clark, 15 Colo. App. 356, 62 Pac. 334; Sullivan v. Eddy, 154 111. 199, 40 N. E. 482; Wilenou v. Handlon, 207 111. 104, 69 N. E. 892; Vaughan v. Godman, 94 Ind. 191; O'connor v. O'connor, 100 Iowa, 476, 69 N. W. 676; Alexander v. De Kermel, 81 Ky. 345; Oxnard v. Blake, 45 Me. 602; Maynard v. Maynard. 10 Mass. 456, 6 Am. Dec. 146; Samson v. Thornton 3 Mete. (Mass.) 275, 37 Am. Dec. 135; Bullitt v. Taylor, 34 Miss. 708, 69 Am. Dec.
412; Cravens v. Rossiter, 116 Mo. 338, 38 Am. St. Rep. 606; Derry Bank v. Webster, 44 N. H. 264; Jackson v. Phipps, 12 Johns. (N. Y.) 418; King v. Antrim Lumber Co., - Okla - 172 Pac. 958; Bogard v. Barhan, 56 Ore. 269, 108 Pac. 214.
85. Post, Sec. 463.
86. Humiston v. Preston, 6C Conn. 579. 34 Atl. 544; Jones v. Bush, 4 Harr. (Del.) 1; Ellis v. Clark, 39 Fla. 714, 23 So. 410; Sullivan v. Eddy, 154 111. 199.40 N. E. 482; Vaughan v. Vaughan, 94 Ind. 19; Hutton v. Smith. 8y Iowa, 238, 55 N. W. 326; Hoga-done v. Grange Mut. Fire Ins. Co., 133 Mich. 339, 94 N. W 1045; Barras v. Barras. 192 Mich. 584, 159 N. W. 147; Bahbitt v Bennett, 68 Minn. 260. 71 N. W. 22; Metcalfe v. Brandon, 60 Miss. 685; Boardman v. Dana, 34 Pa. St. 252; Thompson v. Jones, 1 Head (Tenn.) 576; Walsh v Vermont Mut. Fire Ins. Co., 54 Vt. 351.
Tor and not to vest a beneficial interest in the grantee, has been regarded as precluding, or at least as tending to preclude, any inference of delivery from the grantor's action in recording the instrument,87 Such a view appears, however, to be open to question. The instrument cannot operate in any degree for his protection unless it operates as a conveyance, and the fact that he desires protection would seem to be rather an additional reason for regarding the instrument as having become operative by delivery.88 Even conceding that his purpose to avoid payment of claims would show that there was no delivery, it might be questioned whether he, or one claiming in his right, should be allowed to assert that the ordinary inference from his use of the recording system should not be drawn, because he made such use for purposes of deception.
That the grantor, after having the instrument recorded, himself obtains it from the recording officer, instead of leaving it with the latter to be called for by the grantee, does not appear to have any proper bearing upon the question of the grantor's intention in having it recorded.89 Even though there were the fullest intention on the part of the grantor that the instrument should become legally effective, he might veil desire to have it returned to him to hold temporarily. The fact, however, that the grantor not only obtains the instrument after its record, but retains it in his possession, has been regarded as showing that it has not been delivered.90 Conceding that the record of the instrument by the grantor is sufficient in itself to make a prima facie showing of delivery, it is not entirely clear why his subsequent retention of the instrument should be regarded as showing a different intention. That the grantor has the instrument recorded might properly, it is submitted, overcome any inference of non-delivery from his subsequent possession of the instrument, since, as before remarked, it is difficult to conceive of any object in having it recorded other than that it should be legally operative.
87. Coulson v. Scott, 167 Ala. 606, 52 So. 436; Union Mut. Life Ins. Co. v. Campbell, 95 111. 267, 35 Am. Rep. 166; Weber v. Christen, 121 111. 91, 2 Am. St. Rep. 68, 11 N. E. 893; Vaughan v. Godman, 94 Ind. 19; Davis v. Davis, 92 Iowa, 147, 60 N. W. 507; Egan v. Horrigan, 96 Me. 46, 51 Atl. 246; Hogadone v. Grange Mut. Fire Ins. Co., 133 Mich. 339, 94 N. W. 1045; Hooper v. Vanstrum, 92 Minn. 406, 100 N. W. 229; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S. W. 570; Elmore v. Marks, 39 Vt. 538.
88. See Corley v. Corley, 2 Cold, (Tenn.) 520; Chambers v.
Chambers, 227 Mo. 262, 137 Am. St. Rep. 567, 127 S W. 86; Decker v Stansberry, 249 111. 487, Ann. Cas. 1912A, 227, 94 N. E. 940.
89. See Lewis v. Watson, 98 Ala. 480, 22 L. R. A. 297; Russell v. May, 77 Ark. 89, 90 S. W. 617; Moore v. Giles, 49 Conn. 570; Allen v. Hughes, 106 Ga. 775. 32 S. E. 927; Colee v. Colee, 122 Ind. 109, 17 Am. St. Rep. 345. 23 N. E. 687; Collins v. Smith, 144 Iowa, 200, 122 N. W. 839; Lay v. Lay, (Ky.), 66 S. W. 371; Mitchell's Lessee v. Ryan, 3 Ohio St. 377; Thompson v. Jones, 1 Head. (Tenn.) 576. But Weber v. Christen, 121 111.