Ratification of the Recording of an Un delivered Deed. An undelivered deed wrong fully recorded passes no title; Calhoun Coun ty v. Emigrant Co., 93 U. S. 124, 23 L. Ed. 826 ; Gulf Coal & Coke Co. v. Coal & Coke Co., 145 Ala. 228, 40 South. 397; Everts v. Agnes, 6 Wis. 453 ; Smith v. Bank, 32 Vt. 341, 76 Am. Dec. 179; but a deed secured by the grantee and placed on record without delivery may be ratified by the grantor by treating the property as belonging to the grantee, and inducing him to assert title under the belief that he has the title; Phelps v. Pratt, 225 Ill. 85, 80 N. E. 69, 9 L. R. A. (N. S.) 945; such a delivery was held to have been ratified by the grantor where he had notice of the recording and remained quiet for several years; McNulty v. McNulty, 47 Kan. 208, 27 Pac. 819; Pitt man v. Sofley, 64 Ill. 155; and where he re ceived and retained the purchase money or a portion thereof ; Harkness v. Cleaves, 113 Ia. 140, 84 N. W. 1033; and where the gran tor assents to the grantee's raising money to be secured by a mortgage upon the erty; Lyman v. Smith, 4 Lack. Leg. News (a.) 207; to the same effect, Mays v. Shields, 117 Ga. 814, 45 S. E. 68, where it is said the grantor cannot recognize the grantee's Possession as valid for some purposes, and disclaim it for others; and to the same ef fect, Dixon v. Bank, 102 Ga. 461, 31 S. E. 96, 66 Am. St. Rep. 193.
Negligence by the grantor of an undeliver ed deed in keeping it in a place to which the grantee had access will not estop him from denying its validity as against a pur chaser in good faith from the grantee, where the latter surreptitiously abstracted the deed and recorded it ; Garner v. Risinger, 35 Tex. Civ. App. 378, 81 S. W. 343; Tisher v. Beck with, 30 Wis. 55, 11 Am. Rep. 546.
It has been held that nothing short of an explicit ratification by the grantor of the delivery, or such acquiescence after full knowledge of the facts as would raise a presumption of an express ratification, could give the deed vitality; Hadlock v. Hadlock, 22 Ill. 388. And it has been held that failure of succes sors in title to one whose undelivered deed to real estate has been recorded by the gran tee to bring suit to remove it from the rec ord will not .estop them from denying the title of a stranger who purchases the prop erty in reliance upon the record; Gulf Coal & Coke Co. & Coke Co., 145 Ala. 228, 40 South. 397.
See 14 Harv. L. Rev. 456; ASSENT.
There can ordinarily be but one valid de livery; Verplank v. Sterry, 12 Johns. (N. Y.) 536, 7 Am. Dec. 348 ; which can take place only after complete execution ; McKee v. Hicks, 13 N. C. 379 ; Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 426, 37 L. Ed. 350. But there must be one ; Stiles v. Brown, 16 Vt. 563; 2 Washb. R. P. 581; and from that one the deed takes effect; Geiss v. Oden heimer, 4 Yeates (Pa.) 278, 2 Am. Dec. 407; Cutts v. Mfg. Co., 18 Me. 190. Elsey v.
Metcalf, 1 Denio (N. Y.) 323. Where the date of acknowledgment of a mortgage dif fered from its date, delivery will be of the former date, in the absence of any evidence; Guaranty Trust Co. of New York v. It. Co., 107 Fed. 311, 46 C. C. A. 305.
See ESCROW ; RECORD ; DEED.
In Contracts. The transfer of the posses sion of a thing from one person to another. Originally, delivery was a clear and un equivocal act of giving possession, accom plished by placing the subject to be trans ferred in the hands of the transferree or his agent, or in their respective warehouses, ves sels, carts, and the like; but in modern times it is frequently symbolical, as by delivery of the key to a room containing goods ; Wilkes v. Ferris, 5 Johns. (N. Y.) 335, 4 Am. Dec. 364; Leedom v. Philips, 1 Yeates (Pa.) 529; 2 Ves. Sen. 445; see, also, 7 East 558; 3 B. & P. 233; Debinson v. Emmons, 158 Mass. 592, 33 N. E. 706 ; by marking timber on a wharf, or goods in a warehouse, or by separating and weighing or measuring them; Barney v. Brown, 2 Vt. 374, 19 Am. Dec. 720; Huff v. Hires, 40 N. J. L. 581, 29 Am. Rep. 282; Farmers; Phosphate Co. v. Gill, 69 Md. 537, 16 Atl. 214, 1 L. R. A. 761, 9 Am: St. Rep. 443; or otherwise constructive, as by the delivery of a part for the whole; Chamberlain v. Farr, 23 Vt. 265; Leggett v. Rogers, 9 Barb. (N. Y.) 416; Packard v. Duusmore, 11 Cush. (Mass.) 282; Vining v. Gilbreth, 39 Me. 496 ; 3 B. & P. 69. And see, as to what constitutes a delivery ; President, etc., of Portland Bank v. Stacey, 4 Mass. 661, 3 Am. Dec. 253; Burrows v. Whitaker, 71 R. Y. 291, 27 Am. Rep. 42 ; Gravett v. Mugge, 89 Ill. 218; Thomas' Adm'r v. Lewis, 89 Va. 15 S. E. 389, 18 L. R. A. 170, 37 Am. St. Rep. 848; Deming v. Cotton-Press Co., 90 Tenn. 306, 17 S. W. 89, 13 L. It. A. 518 ; Brewster v. Reel, 74 Ia. 506, 38 N. W. 381; [1892] 1 Q. B. 582.
Where goods are ordered by a foreign merchant, the title passes, on a delivery to a carrier for shipment, subject only to the right of stoppage in transitu; Philadelphia & R. R. Co. v. Wireman, 88 Pa. 264; Smith v. Edwards, 156 Mass. 221, 30 N. E. 1017; Seaman v. Adler, 37 Fed. 268; Rechtin v. McGary, 117 Ind. 132, 19 N. E. 731; First Nat. Bank v. McAndrews, 7 Mont. 150, 14 Pac. 763 ; Meyer Bros. Drug Co. v. McMahon, 50 Mo. App. 18; Foley v. Felrath, 98 Ala. 176, 13 South. 485, 39 Am. St. Rep. 39. Prima facie proof of delivery is made out by proof of delivery to a carrier ; Brod v. Der ing, 139 Ill. App. 107; but such is not a de livery to the vendee where he dies before they reach their destination; Smith. v. Bren nan, 62 Mich. 349, 28 N. W. 892, 4 Am. St. Rep. 867. Where the vendor takes the bill of lading deliverable to the order of him self, or of his agent, it prevents the proper ty from passing to the intended vendee until delivery ; Berger v. State, 50 Ark. 20, 6 S. W. 15; Blackb. Sales 130.