DELIVERY. 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 his 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 pass es the deed from the possession of the gran tor, 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 delivery in this manner is an es crow (q. v.).
No particular form is required to effect a delivery. It may be by acts merely, by words merely, or by both combined; but in all cases an intention that it shall be a deliv ery must exist ; Com. Dig. Fait (A); 6 Sim. 31; Lindsay y. Lindsay, 11 Vt. 621; Arrisou v. Harmstead, 2 Pa. 191; Verplank v. Sterry, 12 Johns. (N. Y.) 536, 7 Am. Dec. 348; Mills v. Gore, 20 Pick. (Mass.) 28; Hughes V. Fas ten, 4 J. J. Marsh. (Ky.) 572, 20 Am. Dec. 230; Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041, 33 Am. St. Rep. 326; Nazro v. Ware, 38 Minn. 443, 38 N. W. 359; Steffian .v. Bank. 69 Tex. 513, 6 S. W. 623 ; Flint v. Phipps, 16 Or. 437, 19 Pac. 543. The unconditional delivery of a deed to a third person for the use of a lunatic grantee, not under guardian ship, followed by circumstances indicating acceptance by the grantee, is valid; Camp bell v. Kuhn, 45 Mich. 513, 8 N. W. 523, 40 Am. Rep. 479. "Anything which signifies the intention of the grantor to part with his con trol or dominion over the paper, so that it may become a muniment of title in the gran tee, operates as a legal delivery. With re spect to the measure of proof required, a difference is recognized in the cases depend ing upon the character of the deed, whether it. be voluntary or made to give effect to a sale. In the former case the intention to Part with the control of the deed is not pre sumed and a delivery must be proved strict ly. . . . But if the conveyance be for a valuable consideration and absolute on its face, the intention to consummate the con veyance by the delivery of the deed as a muniment of title is inferred from the gran tor's parting with the possession of it, whether it be to the grantee directly or to some third person-if he part with it with out any condition or reservation." Bates,
Ch., in Jamison v. Craven, 4 Del. Ch. 326. In the absence of direct evidence, the deliv ery of a deed will be presumed from the concurrent acts of the parties recognizing a transfer of title; Gould v. Day, 94 U. S. 405, 24 L. Ed. 232; Turner v. Warren, 160 Pa. 336, 28 Atl. 781; Williams v. Williams, 148 Ill. 426, 36 N. E. 104. So long as a deed is within the control and subject to the dominion of the grantor, there is no deliv ery, without which there can be no deed; Byars v. Spencer, 101 Ill. 429, 40 Am. icep. 212; Lang v. Smith, 37 W. Va. 725, 17 S. E. 213. The possession of a deed by the grantee therein, is prima facie evidence of its delivery ; Campbell v. Carruth, 32 Fla. 264, 13 South. 432; McClellan v. Zwingli, 70 Hun 600, 24 N. Y. Supp. 371; Lewis v. Wat son, 98 Ala. 479, 13 South. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82. The deed of a cor poration was said to be delivered by affixing the corporate seal; Co. Litt. 22, n., 36, n.; Cro. Eliz. 167; 2 Rolle, Abr. Fait (I); L. R. 2 H. L. 296.
It may be made by an agent as well as by the grantor himself ; Hatch v. Hatch, 9 Mass. 30,7, 6 Am. Dec. 67; Belden v. Carter, 4 Day (Conn.) 66, 4 Am. Dec. 185; 5 B. & C. 671; or to an agent previously appointed; West ern R. Corp. v. Babcock; 6 Mete. (Mass.) 356; or subsequently recognized; Turner v. Whid den, 22 Me. 121; Shirley's Lessee v. Ayres, 14 Ohio, 307, 45 Am. Dec. 546 ; but a sub sequent assent on the part of the grantee will not be presumed ; Hulick v. Scovil, 4 Gilman (Ill.) 177; Canning v. Pinkham, 1 N. H. 353; Church v. Gilman, 15 Wend. (N. Y.) 656, 30 Am. Dec. 82. Where a father in purchasing land has the deed executed in the name of his minor son, the delivery of the deed to the father is sufficient delivery to the son; Hall v. Hall, 107 Mo. 101, 17 S. W. 811.