DELIVERY. In Conveyancing. The transfer of a deed from the grantor to the grantee, or some person acting in his behalf, In such a manner as to deprive the grantor of the right to recall it at his option.
An absolute delivery is one which is com plete upon the actual transfer of the instru ment from the possession of the grantor.
A conditional delivery is one which passes the deed from the possession of the grantor, but is not to be completed by possession in the grantee, or a third person as his agent, until the happening of a specified event.
A deed delivered in this manner is an escrow, and such a delivery must he always made to a third person, Sheppard, Touchst. 59; Croke Eliz. 520; 8 Mass. 230; though where the transfer to the pos session of the grantee was merely to enable him to convey it to a third person to hold as an escrow, it wee held not an absolute delivery to the grantee. 2 Dew. it B. No. C. 530 ; 4 Watts, Penn. 180; 22 Me. 569; 23 Wend. N. Y. 43; 2 Barnew. & C. 82.
2. No particular form of procedure is re quired to effect a delivery. It may be by acts merely, by words merely, or by both combined; but in all cases an intenth n that it shall be a delivery must exist. Comyns, Dig. Fait (A) : 1 Wood, Cony. 193; 6 Sim. Ch. 31 ; 11 Vt. 621 ; 18 Me. 391 ; 2 Penn. St. 191 ; • 12 Johns. N. Y. 536 ; 1 Johns. Ch. N. Y. 456 ; 20 Pick. Mass. 28 ; 4 J. J. Marsh. Ky. 572. The deed of a corporation is gene rally delivered by affixing the corporate seal. Coke, Litt. 22, n., 36, n.; Croke Eliz. 167; 2 'Rolle, Abr. Fait (I).
It may be made by an agent as well as by the grantor himself; 9 Mass. 307 . 3 Mete. Mass. 412 ; 4 Day, Conn. 66; 5 Barnew. & C. 671 ; 2 Washburn, Real Prop. 579 ; or to an agent previously appointed, 6 Mete. Mass. 356, or subsequently recognized, 22 Me. 121; 14 Ohio, 307 ; but a subsequent assent on the part of the grantee will not be presumed. 9 Ill. 177 ; 1 N. II. 353 ; 5 id. 71 ; 15 Wend. N. Y. 656 ; 25 Johns. N. Y. 187. See, also, 9 Mass. 307 • 4 Day Conn. 06 ; 2 Ired. Eq.
No. C. 557.
3. To complete a delivery, acceptance must take place, which may be presumed from the grantee's posseskion, 1 Harr. & J. M. 319; 4 Pick. Mass. 518 ; 2 Ala. 136 ; 11 id. 412; 1 N. H. 353 ; 4 Fla. 359; 6 Mo. 326; 1 Zabr. N. J. 379; from the relationship of a per. son holding the deed to the grantee, 7 Ill. 557; 1 Johns. Ch. N. Y. 240, 4f.6 ; and from other circumstances. 18 Conn. 257 ; 5 Watts, Penn. 243.
There can ordinarily be but one valid de livery, 12 Johns. N. Y. 536 • 20 Pick. Mass. 28; which can take place only after complete execution. 2 Dev. No. C. 379. But there must he one, 2 Harr. Del. 197 ' • 16 Vt. 563; 2 Washburn, Real Prop. 58l• ' and from that one the deed takes effect. 12 Mass. 455; 4 Yeates, Penn. 278 ; 18 Me. 190. See 1 Den. N. Y. 323.
Consult 2 Bouvier, Inst. n. 2018 et seg.; 2 Washburn, Real Prop. 577 et seq.; 4 Kent, Comm. 466.
In Contracts. The transfer of the pos session of a thing from one person to another.
4. Originally, delivery was a clear and unequivocal act of giving possession, accom plished by placing the subject to be trans ferred in the hands of the transferree or his avowed agent, or in their respective ware houses, vessels, carts, and the like; but in modern times it is frequently symbolical, as by delivery of the key to a room containing goods, 2 Aik. Vt. 79 ; 5 Johns. N. Y. 335; 1 Yeates, Penn. 529 ; 2 Yes. Ch. 445 ; 1 East, 192 ; see, also, 7 East, 558 ; 3 Barnew. & Ald. 1 ; 3 Bos. & P. 233 ; 3 Barnew. & C. 45 ; by marking timber on a wharf, or goods in a warehouse, or by separating and weigh ing or measuring them, 2 Vt. 374 ; or other wise constructive, as by the delivery of a_part for the whole. 23 Vt. 265 ; 9 Barb. N. Y.
511; 19 id. 416 •, 11 Cush. Mass. 282: 39 Ms. 496 ; 2 H. Blackst. 504 ; 3 Bos. & P. 69. See 6 East, 614; 2 Gray, Mass. 195. And see, as to what constitutes a delivery, 4 Mass. 661; 8 id. 287 ; 10 id. 308 ; 14 Johns. N. Y. 167; 15 id. 349.