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 a manual transfer of the instrument by the grantor directly to the recording officer shows, prima facie, an intention that it shall operate as a conveyance, it would seem that his manual transfer of the instrument to another, to be by the latter handed to the recording officer, might likewise show such an intention, and there are decisions to this effect.91
91, 2 Am. St. Rep. 68, 11 N. E. 893, is apparently contra.
90. Weber v. Christen, 121 111. 91, 2 Am. St. Rep. 68, 11 N. E. 893; Hutton v. Smith, 88 Iowa, 238, 55 N. W. 326; Jourdan v. Patterson, 102 Mich. 602, 61 N. W. 64; Babbitt v. Bennett, 68 Minn. 260, 71 N. W. 22; Elmore v. Marks, 39 Vt. 538; Fair Haven Marble & Marbleized Slate Co. v. Owens, 69 Vt. 246, 37 Atl. 749. See King v. Antrim Lumber Co., - Okla. - , 172 Pac. 958.
91. Tennessee Coal, lion &
Railroad Co. v. Wheeler, 125 Ala. 538, 28 So. 38; Zeigler v. Daniel, 128 Ark. 403, 194 S. W. 246: Valter v. Blavka, 195 111. 610, 63 N. E. 499; In re Bell's Estate, 150 Iowa, 725, 130 N. W. 798; Tngersoll v. Odendahl, 136 .Minn. 428, 162 N W. 325; Robbins v. Rascoe, 120 N. Car. 79, 38 L. R. A. 238, 58 Am. St. Rep. 774; Thompson v Jones, 1 Head (Tenn.) Tut;. Bates v. Winters, 138 Wis. 673, 120 N. W. 498.
2 R. P. - 36
It has been frequently asserted that the mere fact that the instrument is of record raises a presumption of delivery, without any reference being made to the identity of the person who had it recorded.92 The cases do not ordinarily indicate the basis of this presumption, but occasionally93 it has been regarded as based, to some extent at least, upon the statutory provisions, existent in most of the states,94 making an instrument, duly acknowledged (or proved), and recorded, or a copy thereof, admissible without further proof. But this latter view does not appear to accord with the authorities, before referred to,95 that the authentication of an instrument sufficient to justify its admission in evidence does not create a presumption of its due execution. A more satisfactory reason for inferring delivery from the fact that the instrument is of record would seem to be the probability that it was placed on record either by the grantor, thus indicating an intention on his part to make it operative,96 or by the grantee, thus indicating that it was in his possession, this itself raising a presumption of delivery.97 Any presumption arising from the mere fact of record might be overthrown by evidence that the instrument was
92. Estes v. German Nat. Bank, 62 Ark. 7, 34 S. W. 85; Parker v. Salmons, 101 Ga. 160, 65 Am. St. Rep. 291; Spencer v. Razor, 251 111. 278, 96 N. E. 300; Witt v. Witt, 174 Iowa, 173, 156 N. W. 321; Maynard v. Maynard, 145 Ky. 197, 140 S. W. 156; Balin v. Osoba, 76 Kan. 234, 91 Pac. 57; Patrick v. Howard, 47 Mich. 40, 10 N. W. 71; Sweetland v. Buell, 164 N, Y. 541, 79 Am. St. Rep. 676; Stephenson v. Van Blokland, 60 Ore. 247, 118 Pac. 1026; Mc-daniel v. Anderson, 19 S. C. 211; Morgan v. Morgan, 82 Vt. 243, 137 Am. St. Rep. 1006, 73 Atl.
24; Whiting v. Hoglund, 127 Wis. 135, 7 Ann. Cas. 224, 106 N. W. 391; Laughlin v. Calumet & Chicago Canal & Dock Co., 13 C. C. A. 1, 65 Fed. 441.
93. See Napier v. Elliott, 177 Ala. 113, 58 So. 435; Mitchell's Lessee v. Ryan, 3 Ohio St. 377; Jackson v. Perkins. 2 Wend. (N. Y.) 317; Goodlett v. Goodman Coal & Coke Co., 192 Fed. 775, 113 C. C. A. 61.
94. These statutes are summarized in 3 Wigmore, Evidence, Sec.Sec. 1651, 1676.
95. Ante, this section, note 81.
96. Ante, this section, note 82.
97. Ante, this section, note 67.
Not placed on record by the authority of cither the grantor or grantee,98 or by other evidence to the effect that there was no delivery.'99
That the parties to the instrument acted as if the title to the property had passed to the grantee named has been regarded as showing or tending to show delivery.1 In regard to this it may be conceded that the fact that the grantor named acts as if the title had passed to the grantee named would certainly appear to be strong evidence of his intention that the instrument should operate to pass the title.2 That the grantee named so acts would appear to be strong evidence of his acceptance of the conveyance, so far as an acceptance may be regarded as necessary in the particular jurisdiction,3 but it does not seem to have any particular relevancy to the question whether the grantor has delivered the instrument, assuming that, as is believed to be the case, the question of acceptance is entirely distinct from that of delivery.
- Voluntary settlement. It was said by Chancellor Kent in a quite early New York case,38 that a voluntary settlement is valid, even though the grantor retains possession of the instrument, in the absence of other circumstances to show that it is not intended to be absolute. In view of the fact, well recognized at the present day if not at that time, that not only a voluntary settlement, but any conveyance, may be effective although the physical possession of the instrument remains in the grantor,4 the statement referred to with reference to voluntary settlements appears to have no particular significance. It has however been quoted from time to time,5 and it appears to be responsible for the view, asserted in two or three states, that in the case of a voluntary settlement, especially when made in favor of an infant, the law will make stronger presumptions in favor of delivery than in other cases.6 In one state it has been said that in the case of such a settlement the burden of proof is on the grantor to show that there was no delivery.7 Why there should be a relaxation of the requirements of proof of delivery in the case of such a settlement is not entirely clear. It has been said that "the same degree of formality is never required, on account of the great degree of confidence which the parties are presumed to have in each other, and the inability of the grantee, frequently, to take care of his own interests."8 As a matter of fact, however, no formality is necessary in any case for the delivery of a conveyance, and conceding the necessity