SECOND: No particular manner of delivery, or even a formal one, is necessary. It is only essential that the acts of of the parties should clearly evince such an intent. Goodrich v. Walker, 1 John. Cases, 253; Shep. Touch. 57. Where a deed is retained by the grantor after its execu tion, until the grantee shall fulfill some requirement called for by the contract, there is no delivery, and no estate passes. Thus where a deed was executed, attested and acknowledged, and every required step taken for its due execution, but was retained by the grantor until the payment of the purchase money, it was held that there was no delivery, and no estate passed, although in the meantime the grantor died, and the deed was found among his papers. Jackson v. Dunlap, 1 John. Cases, 114. There was an expressed intent not to deliver without the condition of payment was first fulfilled; and no fulfillment being shown, and the grantor having died in possession of the deed, it could not take effect. A delivery cannot be made after the grantor's death. Jackson v. Leek. 12 Wen. 105; Stilwell v. Hubbard, 20 Wen. 45, 46. The question of intention, as evinced by the contemporaneous words and acts of the parties, has been regarded as controlling the question of delivery, notwithstanding no actual delivery of the instrument was made to the grantee during the lifetime of the grantor, and it was found among the papers of the latter after his death. Schrugham v. Wood, 15 Wen. 545; See also, Fellows v. Fellows, 37 N. H. 75. Chancellor Kent, in his commentaries, states the rule to be, that "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 Vol. Com. 455, 456. In Doe v. Knight, 5 Barn. & Cress. 671, it was held that "where a party to an instrument seals it, and declares in the presence of a witness that he delivers it as his deed, but keeps it in his own possession, and there is nothing to qualify that, or to show that the executing party did not intend it to operate immediately, except the keeping of the deed in his hands, it is a valid and effectual deed; and delivery to the party who is to take by the deed, or to any person for his use, is not essential." This was quoted with approbation by the supreme court of New York in Scrugham v. Wood, 15 Wen. 547. case; See also, Waddell v. Hewitt, 1 Iredell's Eq. R. 475. The controlling effect of the intention of the executing party, upon the question of delivery, seems to have been uniformly acknowledged. That intention must be proved by what was said and done by the parties, and the circumstances attending and surrounding the transaction in each particular and, in cases of any doubt, is the proper subject to submit to the finding of a jury. Thus, where a deed was executed by the grantor, and delivered to a third person, to be delivered to the grantees, in case the grantor should die intestate, and the grantor died intestate, and the deed was delivered to the grantees, it was held to be a valid delivery, and that the deed took effect from the time of the conditional delivery to the third person. Ruggles v. Lawson, 13 John. 285. See also, Hatch v. Hatch, 9 There is a class of cases which illustrate, in an extreme degree, the force allowed by the law to the intention of the parties in controlling the question of delivery of a deed of conveyance of land. For example: In Van Valen v. Schermerhorn, 22 How. Pr. Rep. 416, the owner of an estate in fee executed and acknowledged a warranty deed to a person therein named, took it to the clerk's office of the county and procured it to be recorded. The grantor, who was the plaintiff in the action, was allowed to testify as a witness in his own behalf that it was never his intention to deliver the deed, and that he did not deliver it; that the grantee was not present when the deed was executed, or when recorded, and knew nothing of it. The court held there was no delivery, on the ground that the deposit of the deed for record was not enough to constitute a delivery; that it must appear in addition that it was deposited for record for the use of the grantee; and the cases upon that point were reviewed by the court. See also, Jackson v. Perkins, 2 Wen. 317, and authorities there cited. It is evident from the authorities that the formal execution of a deed, and proof thereof, is no evidence of its delivery while it is in the hands of the maker of the deed, or those who stand in his place. Nor will the delivery for record constitute a delivery to the grantee, unless there be evidence of some kind showing acceptance by the grantee. Taylor's Lan. and Ten. §§ 167, 168; Maynard v. Maynard, 10 Where a registered deed, which purports to have been delivered, is lost, the presumption is that it was delivered. But the presumption arising from the fact of its being recorded, is rebutted if the original deed is produced by the grantor, or if the grantee was not present at the attestation personally, or by attorney or agent. In Powers v. Russell, 13 Pick. 69, the question of the delivery of a deed of mortgage was the main point in the case. The plaintiff filed his affidavit, showing that the deed was lost, destroyed or fraudulently concealed; and upon that proof was allowed to introduce evidence of the execution of the deed, and to show by secondary evidence the contents thereof. Under this alleged mortgage to himself, he sought to redeem as against a prior mortgagee. The mortgage alleged to be lost was claimed to have been made by Nathan Powers to the plaintiff. It was proved on the part of the defence that the mortgage was sent by Nathan Powers, the alleged mortgagor, to the register's office to be recorded; was in his possession again soon after, remained in his possession until the time of his death, and after his death had remained in the possession of his widow, where it was at the time of the trial. It appeared, also, that the alleged mortgagee was not present when the mortgage was executed. The court decided that the presumption of delivery, arising from the plaintiff's evidence, was rebutted, and dismissed the bill. See Taylor's Lan. and Ten. 167, 168. Where the plaintiff loaned one thousand dollars, receiving ten dollars in addition to legal interest, and took from the defendant a bond and mortgage signed by him and delivered to the plaintiff, but with the agreement that the defendant's wife, who was then ill, should afterwards sign, and both should acknowledge execution; and afterwards the defendants refused to acknowledge the execution, unless the plaintiff would pay back the ten dollars usurious interest, which was then paid back, and the mortgage was acknowledged and delivered, it was held that the bond and mortgage did not take effect as delivered instruments when first delivered to the plaintiff, but were in the hands of the plaintiff' awaiting completion and acceptance.-(Brackett v. Barney, 28 N. Y. The action was brought to foreclose the mortgage, and the ruling was made to avoid the defence of usury. 333. This decision was put upon the ground that the bond and mortgage were first received only conditionally, to await the further action of the parties; and were not accepted as absolutely delivered, until after the transaction had been cured of its usury by the repayment of the ten dollars. And they likened it to the case of Crosby v. Hillyer, 24 Wen. 284, where it was shown that an assignee received and held an assignment for the benefit of creditors, for several days before he concluded to accept the deed, and in the meantime judgments had been perfected against the assignor. The judgments were held to be good against the assignment. If the court were right in their assumption of facts, as to the first delivery, there can be no doubt they disposed of the case correctly. The authorities cited by them show the rule to be well established, that the question of delivery is one of intention; and where the instrument has been received for some other purpose than to operate as an effective instrument, it cannot be treated as effective until the other purpose has been accomplished. In addition to cases before cited, this principle will be found distinctly applied in Chouteau v.. Suydam, 21 N. Y. 181, 182, and Graves v. Dudley, 20 N. Y. 79. In the case last cited, it was held there was no delivery, because the deed was received merely to be examined and returned for correction, if found defective. The same principle has been applied in other States. See Black v. Shreve, 2 Beasley, 455; Cincinnati R. R. Co. v. Iliff, 13 Ohio N. S. Rep. 235; Woodbury v. Fisher, 20 Ind. 887; Stevens v. Hatch, 6 Minn. 64. It is not necessary that the grantee should have known of, and consented to, the deed at the time of its delivery to a third person for his benefit. It is enough that he afterwards assented to it; and his assent can be shown, after his death, by his parol declarations made in his lifetime. Marsh v. Austin, 1 Allen, 235; Bennett v. Waller, 23 Ill. 97; So, also, the grantor named in a deed may show, by parol evidence, that he refused to accept the deed, for he cannot be made a grantee without his consent. Corbett v. Norcross, 35 N. H. 99. 4. The delivery may be made directly to the grantee, or to any person authorized by him to receive it.-(4 Kent, 454.) And it may be made by the grantor or by some person authorized by him to deliver it.-(Shep. Touch. 57.) It may be made to a stranger for the grantee, and when unconditional, will take effect immediately.-(Brown v. Austin, 35 Barb, 358, and authorities there cited.) The principle is well stated in this case, that, "As a general rule, the delivery of a deed is complete when the grantor has put it beyond his power to revoke or reclaim the deed." It may be added, with equal |