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 .
So acceptance has been said to be presumed in the case of a delivery on condition or to take effect on the grantor's death. Kyle v. Kyle, 175 Iowa, 734, 157 N. W. 248. And the grantee's ignorance of the conveyance is immaterial. Roepke v. Nutz-mann, 95 Neb. 589, 146 N. W. 939; Saltzsieder v. Saltzsieder, 219 N. Y. 523, 114 N. E. 856.
11. See Thayer, Preliminary Treatise on Evidence, pp. 326, sence of acceptance, is that acceptance is not necessary in the case of such a conveyance. The adoption of the double fiction, that acceptance is necessary, and that it exists although confessedly it does not exist, has, it is conceived, no reason whatsoever of policy or convenience in its favor.
The assertion of a presumption of acceptance, as it appears in the cases referred to, is objectionable, it is submitted, not only as involving the introduction of confusing and unnecessary fictions, but also because it in effect differentiates, as regards the necessity of acceptance, between conveyances which are and are not beneficial. Since the grantee, so long as he has not actually accepted the transfer, can disclaim, and so exclude any possibility of prejudice to him by reason of the conveyance, it is not readily perceived why the courts should undertake to discriminate in this regard. "Whether the convevance shall be eventually availed of by the grantee is a matter for him to decide, and it does not appear to be the province of the court to indulge in suppositions as to his probable action in this respect. If acceptance is otherwise not necessary, why should the non beneficial character of the conveyance render it necessary? If it is otherwise necessary, why should the beneficial character of the conveyance render it unnecessary .' Such a distinction, based on the beneficial or onerous character of the conveyance, has been repudiated in England,12 but has been applied in several cases in this country,13 with the effect of invalidating a
335, 351; 2 Chamberlayne, Evidence, Sec.Sec. 1087, 1145, 1146, 1160 et seq.
12. "Almost every conveyance, in truth, entails some charge or obligation which may be onerous in the way of covenant or liability; and we think it much safer that one general rule should prevail, than that the courts should be asked in each particular instance if the deed may not be considered onerous." Campbell, C. J., in Siggera v. Evans, 5 El. & Bl. 367.
13. Occasionally a conveyance has been regarded as not beneficial because It was made in the performance of a contract of sale, which imposed an obligation for conveyance not actually accepted, because not regarded by the court as beneficial in character, although, in these same jurisdictions, a "beneficial" conveyance would have been upheld without any acceptance. If an actual assent or acceptance, it may be remarked, is to be regarded as necessary whenever any burden or obligation is imposed on the grantee, it is somewhat difficult to understand the decisions, hereafter referred to14 which uphold the validity of a conveyance in trust, although the trustee has not assented thereto.
The view that assent or acceptance on the part of the grantee is necessary appears to have had its origin, for the most part, in the notion that a conveyance is a contract, and that consequently there must be a meeting of minds.15 But a conveyance is not a contract,16 and there is no intrinsic difficulty in regarding a conveyance as effective to vest property in the grantee even before the latter has consented to receive it. In the case of a the purchase money upon the purchaser. Derry Bank v. Webster, 44 N. H. 268; Boardman v. Dean, 34 Pa. 252; Wood v. Mont-pelier, (Vt.) 82 Atl. 671. And a mortgage or conveyance to secure several creditors has been regarded as not beneficial for the reason that its acceptance by any one of the creditors might result in precluding his recovery of the whole of his claim. Johnson v. Farley, 45 N. H. 505. A conveyance made to one merely as a conduit of title has been regarded as not beneficial for this purpose. Little v. Eaton, 267 111. 263, 108 N. E. 727. Compare Ferrell v. Childress, 172 Ky. 160, 189 S. W. 1149. where a conveyance so made was regarded as properly accepted by the person beneficially interested in its execution.
14. Post, this section, notes 19, 20.
15. See Welch v. Sackett, 12 Wis. 243; Rogers v. Heads Iron Foundry, 51 Neb. 52, 37 L. R. A. 433.
16. Anson, Contracts (13th Ed.) 3, 4; Pollock, Contracts, Appendix A; Hammon, Contracts, Sec.Sec. 6, 7, note 11; Clark Contracts, 11.
Nor does a contract necessarily involve a meeting of the minds of the parties. "The contractual obligations which the common law recognized were enforced, and are still enforced, not because those obligations are the result of agreement, but because certain forms of procedure afforded remedies for certain wrongs." Harriman, Contracts, 2d Ed.) Sec. 611.
Devise, as well as in that of a transfer by operation of law, the ownership passes without reference to whether the transferee has consented to take the property, and the same might well occur in the case of a voluntary transfer inter vivos, provided only the transferee has the privilege of subsequently refusing the transfer.17 In support of this view reference may be made to the case of conveyances to infants, and persons non compos mentis, and to that of conveyances in trust, discussed in the two following paragraphs.
In the case of a conveyance to an infant, or to a person non compos mentis the courts, even those which assert most positively the necessity, in the ordinary case, of an actual acceptance, undertake to avoid the difficulty of requiring acceptance on the part of one incapable of giving it, by asserting that in such case the assent of the grantee will be conclusively presumed, provided at least the conveyance is beneficial in character.18 But, as before remarked, the conceded lack of acceptance cannot well be supplied by a presumption that the grantee would, if he had an opportunity, accept the conveyance, and moreover, even supposing this could be done, the presumed acceptance, in the case of a conveyance to an infant, or to a person non compos mentis, would be an acceptance by a person lacking in legal capacity, and therefore a nullity.