Duer v. James

Robinson, J., delivered the opinion of the Court. To constitute a delivery of a deed the grantor must do some act putting it beyond his power to revoke. There can be no delivery, so long as the deed is within his control and subject to his authority. In the language of the Supreme Court, in Younge vs. Guilbeau, 3 Wall., 634 , ‘ ‘ The grantor must part with the possession of the deed or the right to return it.” The delivery need not to be to the grantee, but may he to a third party authorized to receive it, or even to a stranger for the use of the grantee, It is not essential to prove a formal delivery, this may be inferred from the acts of the party without wurds, or from words without acts, or from both combined.

In this case the testimony entirely fails to. prove such a delivery of the paper in question, as to make it operate either as a deed of trust, or as an equitable contract. It appears, that in April, 1853, Davis and McDonald entered into a written contract with Duer, Norris & Company, to build for them two houses, in which they stipu ⁴⁹⁷ lated among other things, to give security against liens and encumbrances, whenever they should be thereunto required. During the construction of the houses, security was demanded of Davis, and accordingly on the 14th September, 1854, a deed was prepared in which he conveyed all his property, real and personal, to Henry James and Robert Eareckson, in trust, to hold the same until the first of April, 1855, and from and after that date, to sell the same, or so much as might be necessary to pay all claims for labor and materials done and furnished in the construction of the houses ; the residue, if any, to be paid to Davis, the grantor. The deed was signed and acknowledged by Davis before a justice of the peace, and left by him with the justice, he saying at the time that James and Eareckson, trustees therein named,