The delivery of a deed to a third person for the grantee's benefit, followed by an as sertion of title by the grantee, is a good delivery ; Haenni v. Bleisch, 146 Ill. 262, 34 N. E. 153; as is also such a delivery where the third person is to be custodian, but where the deed is not to go into force until after the grantor's death ; Campbell v. Mor gan, 68 Hun 490, 22 N. Y. Supp. 1001.
The cases holding that a deed delivered to a third person to take effect on the death of the grantor is valid are collected by Mr. Jones in his work on Real Property, vol. 2, § 1234; see also Wittenbrock v. Cass, 110 Cal. 1, 42 Pac. 300; Gish v. Brown, 171 Pa. 479, 33 Atl. 60; Baker v. Baker, 159. Ill.
394, 42 N. E. 867; Benzler v. Rieckhoff, 97 Ia. 75, 66 N. W. 147; Haeg v. Haeg, 53 Minn. 33, 55 N. W. 1114; Hutton v. Cramer, 10 Ariz. 110, 85 Pac. 483, 103 Pac. 497; and there are authorities which uphold such transfers even though the grantor reserves a right to recall the deed at any time be fore his death, provided he does not do so; Belden v. Carter, 4 Day (Conn.) 66, 4 Am. Dec. 185; but it is held that these cases are indefensible on principle, and that such a transaction is testamentary ; Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797, 41 L. R. A. 258; Phelps v. Pratt, 225 Ill. 85, 80 N. E. 69, 9 L. R. A. (N. S.) 945. Actual delivery passes title,' and such title is there after as much beyond the control of the grantor as though he had never owned the land; id.; Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797, 41 L. R. A. 258, citing Connard v. Colgan, 55 Ia. 538, 8 N. W. 351; Seibel v. Rapp, 85 Va. 28, 6 S. E. 478; Douglas v. West, 140 Ill. 455, 31 N. E. 403. For this reason it has been held that the declarations of the grantor subsequent to an alleged delivery are not competent to im lSiach it. If he has in fact transferred the title, he cannot, by his unsworn declarations made in his own interest, in effect lay the foundation for securing a restoration of the title without the act or even consent of the grantee; Bury v. Young, 98 Cal. 446, 33 Pac. 338, 35. Am. St. Rep. 186; Blight v. Schenck, 10 Pa. 285, 51 Am. Dec. 478.
When the maker of a. deed parts with the possession of it to anybody, there is a pre sumption that it was delivered; and it is for the maker to show that it was delivered in escrow; Robbins v. Rascoe, 120 N. C. 79, 26
S. E. 807, 38 L. R. A. 238, 58 Am. St. Rep. 774. As to delivery to a third person to take effect on the grantor's death, some of the cases proceed on the theory that the fee does not pass to the grantee until the deliv ery of the deed to him, and that then his title relates back to the original delivery. But the better rule is said to be that the deed is immediately operative as against the grantor, and that the condition that delivery to the grantee shall not be made until after the grantor's death is equivalent to the res ervation of a life estate in his favor in the land itself ; Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797, 41 L. R. A. 258. In Taft v. Taft, 59 Mich. 185, 26 N. W. 426, 60 Am. Rep. 291, it is said a deed of convey ance in present terms is inconsistent with the retention of a life estate, and from the time when the deed is delivered as a con veyance the whole title goes with it and be comes irrevocable.
To complete a delivery, acceptance must take place, which may be presumed from the grantee's possession; Clarke v. Ray, 1 Har. & J. (Md.) 319 ; Ward v. Lewis, 4 Pick. (Mass.) 518; Canning v. Pinkham, 1 N. H. 353; Southern Life Ins. & Trust Co. v. Cole, 4 Fla. 359; Pitts v. Sheriff, 108 Mo. 110, 18 S. W. 1071; from the relationship of a per son holding the deed to the grantee; Bryan v. Wash, 2 Gilman (Ill.) 557; Souverbye v. Arden, 1 Johns: Ch. (N. Y.) 240; Methodist Episcopal Church v. Jaques, 1 Johns. Ch. (N. Y.) 456; and from other circumstances; Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 315; McKinney v. Rhoads, 5 Watts (Pa.) 343. The execution and recording of a deed, and delivery of it to the register for that pur pose, do not vest the title in the grantee; he must first ratify these acts; Younge v. Guilbeau, 3 Wall. (II. S.) 636, 18 L. Ed. 262; Maynard v. Maynard, 10 Mass. 456, 6'Am. Dec. 146; Hutton v. Smith, 88 Ia. 238, 55 N. W. 326 ; but see Glaze v. Ins. Co., 87 Mich. 349, 49 N. W. 595; but they are prima facie evidelice of delivery ; Kille v. Ege, 79 Pa. 15; Davis v. Garrett, 91 Tenn. 147, 18 S. W. 113 ; Fenton v. Miller, 94 Mich. 204, 53 N. W. 957; Knox v. Clark, 15 Colo. App. 356, 62 Pac. 334.