After the instrument has been delivered, and the title has consequently passed to the grantee named, it cannot, it has usually been held, be revested in the grantor by the mere physical transfer to him of the instrument, or by the cancellation of the instrument, although this is by agreement. In order to reconvey to his grantor, as to any other person, the grantee must execute a conveyance to him.62 In a few states, however, the view has been adopted that the grantee in an unrecorded conveyance, after returning the instrument to the grantor, with the intention of revesting the title in him, or after cancelling the instrument with this intention, cannot introduce secondary evidence of the instrument, the practical effect of this being to divest him of the title in favor of the original grantor.63 And in other jurisdictions it is recognized that, under particular circumstances, the grantee may, by reason of such return or cancellation of the instrument, be estopped to assert title in him274; Banner v. Rosser, 96 Va. 238, 31 S. E. 67.

62. Gimon v. Davis, 36 Ala. 589; White v. Moffett, 108 Ark. 490, 158 S. W. 505; Cranmer v. Porter, 41 Cal. 462; Weygant v. Bartlett, 102 Cal. 224, 36 Pac. 417; Botsford v. Morehouse, 4 Conn. 550; Metropolitan Trust & Sav. Bk. v. Perry, 259 111. 183, 102 N. E. 218; Gibbs v. Potter, 166 Ind. 471, 77 N. E. 942; Hatch v. Hatch, 9 Mass. 311, 6 Am. Dec. 67; Tabor v. Tabor, 136 Mich. 255, 99 N. W. 4; Green v. Hayes, 120 Minn. 201, 139 N. W. 139; Mcallister v. Mitchner, 68 Miss. 672, 9 So. 829; Potter v. Adams, 125 Mo. 118, 28 S. W. 490; Raynor v. Wilson, 6 Hill (N. Y.) 469; Parshall v. Shirts, 54 Barb. (N. Y.) 99; Jeffers v. Philo, 35 Ohio St. 173; Tate v. Clement, 176 Pa.

St. 550, 35 Atl. 214; Wilke v. Wilke, 28 Wis. 296; Furguson v. Bond, 39 W. Va. 561, 20 S. E. 591; Slaughter v. Bernards, 97 Wis. 184, 72 N. W. 977; Bolton v. Carlisle, 2 H. Bl. 263; Ward v. t Lumley, 5 Hurlst. N. 87. And see cases cited ante, Sec. 440 note 29.

63. Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Far-rar v. Farrar, 4 N. H. 191; Mus-sey v. Holt, 24 N. H. 248; Emery v. Dana, 76 N. H. 483, 84 Atl. 976; Gugins v. Van Gorder, 10 Mich. 523, Potter v. Adams, 125 Mo. 118, 28 S. W. 490; Arring-ton v. Arrington, 114 N. C. 115, 19 S. E. 145; Simpkins v. Windsor, 21 Ore. 382, {semUe); Howard v. Huffman, 3 Head (Tenn.) 562; Wilke v. Wilke, 28 Wis. 296, and cases cited ante, Sec. self.64 In one or two states the return of the instrument to the grantor, or its destruction, with the intention of revesting- the ownership in him, has been regarded as divesting the grantee of the equitable though not of the legal title,65 and in two states, apparently, of the legal title as well.66 In all these oases, however, in which the return or cancellation of the instrument has been regarded as effective, directly or indirectly, in favor of the grantor, the instrument was at the time unrecorded, and the return or cancellation of an instrument previously recorded would, in every jurisdiction, presumably, be absolute nugatory.67

440, note 34. But that it does not so operate as against a third person, see Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Wilke v. Wilke, 28 Wis. 296. Compare Pollock, Contracts (Williston's Edition) p. 849.

64. Whisenant v. Gordon, 101 Ala. 256, 13 So. 914 (semble); Brown v. Brown, 142 Iowa, 125, 120 N. W. 724; Rowe v. Epling, 163 Ky. 381, 173 S. W. 801; Patterson v. Yeaton, 47 Me. 308; Comm. v. Dudley, 10 Mass. 403; Trull v. Skinner, 17 Pick. (Mass.) 213; Howe v. Wilder, 11 Gray (Mass.) 267; Mcallister v. Mitchner, 68 Miss. 672, 9 So. 829; Dukes v. Spangler, 35 Ohio St. 119; Stanley v. Epperson, 45 Tex. 645.

65. Reavis v. Reavis, 50 Ala. 60; Sanford v. Finkle, 112 111. 146; Happ v. Happ, 156 111. 183, 41 N. E. 39; Cossman v. Keister, 223 111. 69, 8 L. R. A. (N. S.) 698, 114 Am. St. Rep. 305, 79 N. E. 58; Matheson v. Matheson, 139 Iowa, 511, 18 L. R. A. (N. S.) 1167, 117 N. W. 755; Russell v. Meyer, 7

N. D. 335, 75 N. W. 262. A like view was applied when the instrument was not returned or cancelled, but, having been lost, it was regarded by the parties as having been returned and cancelled. Hays v. Dean, - Iowa, - 164 N. W. 770.

66. Huffman v. Huffman, 1 Lea (Tenn.) 491; Peterson v. Carson - (Tenn.) - 48 S. W. 383; Respass v. Jones, 102 N. Car. 5, 8 S. E. 770.

The making of a second conveyance of the same property, by the same grantor to the same grantee, but excepting a part of that previously conveyed, has been held to render the first conveyance nugatory. Wardnian v. Harper, 156 Iowa, 453, 136 N. W. 893; Hall v. Wright, 137 Ky. 39, 127 S. W. 16.

67. See Pollock. Contracts, (Williston's Ed.) 850; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Rifeiner v. Bowman, 53 Pa. St. 313; Wheeler v. Single, 62 Wis. 380, 22 N. W. 569.

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