#### CHARLES BALDWIN vs. JOSIAH MAULTSBY.

A. signed and sealed a deed conveying certain slaves to B. — called upon wits-nesses to attest it, and acknowledged that it was his act and deed — the was left on the table and was not again seen uptil after A.’s death, about a month after this transaction,.when it was found in A.’s trunk with his valuable papers — A. had previously said he intended to give this property to B. and just before his death said, “ he was satisfied with the way he had disposed of the negroes, the deed of gift was in his trunk and he wished it delivered to B. immediately after his death.” Held, that these circumstances did not constitute a delivery of the deed, nor even afford any evidence tending to shew a delivery, which could be submitted to a jury.

Where there has been no delivery in the lifetime of the grantor, a delivery after his death, though at his request, is void.

The case of Moore v. ColUms, 4 Dev. 384, cited and approved.

Appeal from the Superior Court of Law of Columbus county, at the Spring Term, 1845', his Honor Judge Pearson presiding.

This was an action of trover for six slaves. The defendant admitted the conversion, and the only question was, whether Warren Baldwin, under whom both parties claimed, Lad duly executed a deed of gift to the plaintiff.

To prove the execution of the paper, the plaintiff called one Toon, who swore, that on the 21st of November, 1842, the day the paper be.ars date, at the house of the said Warren Baldwin, he was asked by Baldwin to become one of the subscribing witnesses to the paper, which had been previously drawn by one Wooten and was lying on the table ; he assented ; Baldwin then signed his name, the seal being already made, and got up to make room for the witness. The witness said to Baldwin, “ do you do this as your act and deed?” Baldwin replied, “ I do.” Whereupon, the witness signed his name as a witness, and left the paper on the table. The other subscribing witness then signed his name, the paper was left on the table, and the witness did not see it again until after Baldwin’s death, when it was found in a trunk with *506Baldwin’s deeds for land and other papers. Wooten swore, .'“that Baldwin requested him to write a deed of gift for the ne-groes, saying that these negroes had come by his wife, and he jlacj prom¡se¿ her t0 leave them to her brothers and sisters. The plaintiffs were his brothers and sisters. The witness accordingly wrote the paper. After Baldwin had signed it and Toon had become a witness, he also put his name as a witness, folded it up, and wrote on the back, “ Warren Baldwin to Charles Baldwin and others — Deed of Gift,’’ and dropped it on the table. He and Toon went away, leaving it on the table. He next saw the paper in Baldwin’s trunk, after his death, which was on the 20th of December, 1842. After Baldwin signed his name, he did not touch the paper in the presence of the witness. It remained all the time on the table, except while the witness was folding it. Neither of the plaintiffs was present. One Mithian swore, that, a short time before the death of Baldwin, in speaking about his property, he said, “lam satisfied with the way 1 have disposed of the negroes; the deed of gift is in my trunk, and I wish you to deliver it to Charles Baldwin, immediately after my death.” One Taylor swore, that Baldwin said to him, talking about his property, some short time before his death, “ I have given the negroes, which came by my wife, by a deed of gift to her brothers and sisters, and did it by deed of gift to keep any fuss from being made after my death, and I wish them to take possession of the negroes at my death.” The defendant offered no evidence, but moved the Court to charge the jury, that there was no evidence of a delivery of the paper.

The Court charged, that, to constitute a delivery, the law required the maker of a deed to part with the possession, by passing it to the donee or some other person, with an intent to make it his deed. If the maker thus parted with the possession for an instant, although he then tood it back, still having made it his deed, it would remain so. But unless he did so part with the possession of the paper, an essential ingredient to constitute a deed was wanting; and although the jury were *507satisfied, that Mr. Baldwin was under the impression that the paper would be sufficient to pass the negroes after his death. as a deed of gift, yet, if, in point of fact, the paper had not been delivered so as to become his deed, the title did not pass to the plaintiff, and the defendant was entitled to their verdict. The plaintiff’s counsel moved the Court to charge the jury that there was evidence, from which the jury might infer a delivery. The Court declined so to charge, but, on the contrary, instructed the jury, that it was necessary they should be satisfied from the evidence, that Baldwin had, at least for an instant, parted with the possession of the paper and put it out of his control, with the intent that it should thereby become his deed; otherwise there would not be such a delivery as the law required.

There ivas a verdict for the defendant, and, judgment being rendered accordingly, the plaintiff appealed.

Strange for the plaintiff:

1st. Question of delivery. In Wesson v. Stephens, 2 Ire. Eq. 557, it is decided that delivery to a stranger for another, is a sufficient delivery; and in one view of this case, that is quite sufficient for our purpose. But there are some others in which it is not, and I would here remark, that, in the case of Wesson v. Stephens, the case of Knight v. Garnons, 1 ■ Barn. & Cress. 671, is cited with approbation, and Judge Bailey, in that case, goes the full length that we could* possibly desire, in any view of this, saying and proving by an array of strong authority, that a deed will operate though it is never parted with by him who executes it. I gather from the authorities that delivery means nothing more than some act shewing that the grantor considers the instrument complete, and that an act is done by him which he considers binding’ and obligatory as his deed. Many strong cases are collected in the American Ed. of Comyn’s Dig. Title Fait. A. 3, 4, especially Shelton’s case, Cro. El. 7, where the grantor signed and sealed the deed in the presence of the grantee, leaving it on the table, but the grantee did not take it; but, both the grantor and grantee departing, it was left behind them in the *508same place, it was held 'a delivery. The case of Jacqiles v. Meth. Ep. Church, 17 John. Rep. 548, is a strong case — there the deed was in the hands of a trustee, but had never in fact jejjvere¿ t0 nor to any 01le for him, ljUt being left on the table was taken up by the cestui que trust, and it was held that the repeated acknowledgements of the grantee that he had made such a deed were sufficient, although there was direct proof that there was no delivery in fact — this case is precisely in point for one view of our case. In King v.' Cotton, 3 P. Wms. 358,- it was held, that where a woman, on the eve of marriage, makes a conveyance, which she keeps in her own possession,’ if got out of it against her will, does not bind her,- otherwise it doth.’ See also Hengoor's case, 9 Co. Rep. Í36. The case of Clavering v. Clavering, 2 Barn. Rep. 473, is particularly strong, for there the deed was held valid though never parted with by the grantor; and Lady1 Hudson's case there cited, is to the same purport. In Hare v. Horton, 5 Barn. &. Ad. 715, it is hold that possession by the grantee is prima facie evidence' of delivery. The Case of Lloyd v. Bennett, 8 Carr. & Payne 124, is much like this in many particulars, and there the deed was sustained. In Goodtitle v. Walker, 1 John. Cases 250, it is held that a formal delivery of a’release is not necessary, if such acts appear as shew an intention to deliver, and to the same purpo'rt is Fitch & Biirlce v. Foreman, 14 John. Rep. 172. The case of Verplank v. EaryfL2 John. 212, goes somewhat to strengthen the position, also the case of Souverbye v. Arden, 1 John. Ch. 240. The case of Burling v.- Patterson, 9 Carr. & Payne, 570, shews that the Courts incline very much to presume a delivery in support of a manifest intent and to the same point is Ball v. Taylor, 1 Carr. Payne, 417. In the case of Ptvrk v. Meares, 2 Bos. & Pul. 217, a witness having, been requested to sign as subscribing witness was held evidence of delivery, and in a note to that case, the case of Gullier v. Neale, Peaks N. P. C., 146, is referred to as containing a similar decision. The case of Suider v. Lachenour, 2 Ire. Eq. 360, decides that where a party signs and seals a deed in the presence of wit*509nesses, and it is afterward at his instance proven and registered, this amounts to a delivery, though the execution was in the absence of the grantee in whose possession the instrument was never actually placed. In Haughton v. Barney, 2 Ire. Eq. 393, it is held that where the formal execution of a deed is proven, the presumption arises, that it was considered by the parties as a complete instrument, and "this presumption cannot be overthrown but by clear proof that it never was in fact delivered, and that it was well understood at the time.— That the slightest circumstance will amount to a delivery, I refer to Waddell v. Hewitt., 1 Ire. Eq. 475. In Elliott v, Elliott, 1 Dev. & Bat. Eq. 65, it seems to me that the whole doctrine stated in Knight v. Gannons, is taken for granted.

2nd. The case of Talbot v. Hodson, while it supports the first position, shews at the least, that it should have been left by the Judge as a matter to the Jury, 7 Taunt. 251. And further upon this point is the case of Vanhook v. Barnett &* others, 4 Dev. 270, where it is said delivery is a question of fact, and it is error in the Court to say what constitutes a de* livery; and to same effect is Threadgill v." Jennings, 3 Dev. 384.

J. H. Bryan, for the defendant.

DaNieu, J.

The only question in the cause was, whether Warren Baldwin, the owner of the slaves, ever delivered as his deed the paper writing, under which the plaintiff claimed them. It is admitted by the plaintiff’s counsel, that the signing and sealing of the paper writing would not make it the deed of Warren Baldwin, but that delivery was also necessary He contends, however, that what took place at the time the witnesses attested the paper, to wit, Baldwin’s signing, sealing, acknowledgment, and preservation of the paper, made it in law his deed and was tantamount to a delivery. The cases of Parkes v. Meares, 2 Bos. & P. 217, and Grillier v. Niel and others, Peak’s Cases 146, have been cited. In the first case the plaintiff’s attorney had possession of the deed signed *510and sealed, and he asked the witness to attest it, in the presence die obligor, which he did. The witness also knew the hand writing of the obligor. The Court left it to the jury, Upon evjdencej whether the defendant had not sealed and delivered the deed to the plaintiff’s attorney, which in law would be a good delivery to the use of the plaintiff. In the second case, the Court held that the proof by the witness of the hand writing of the obligor, was evidence to go to the jury, that he also sealed and delivered it* and, there being nothing to the contrary, it was sufficient evidence. We think neither of these cases aids the plaintiff. In the case of Jakes v. The Methodist Church, 17 Johns. Rep. 548, the deed of marriage settlement was duly executed by the parties and laid on the table, and the wife, as cestui que trust, took it up and kept it in her possession for the trustee, until her death. It was held in equity, under the circumstances of the case, to be a good and valid delivery of the deed. The contest was with the husband, Mr. Jakes, by those claiming under the deed of settlement, which had been made agreeably to an anti-nuptial parol contract. And the husband had in a variety of instances acknowledged the validity of the deed; and he had been appointed by his wife executor to her will, and he had qualified and acted as such. The Court said, after all these circumstances, they would not now hear him to allege, that the deed had never been delivered to the trustee; so we see that case turned upon its own peculiar circumstances, and that it is no authority for the present plaintiff. In Doe & Garnons v. Knight 5 Barn. & Cress. 671, the lessor of the plaintiff claimed the property, as beingthe mortgagee of Mr. Wm. Wynn, deceased. The mortgagor on one day signed, sealed and acknowledged the deed, and procured his niece to witness it. He did not tell her the contents of it, and he then took it away with him. On a subsequent day, he went to the house of his sister, Miss Elizabeth Wynn; he brought to her a brown paper parcel, and said, “ here, Bess, keep this, it belongs to Mr. Garnons.” He came again and asked for the parcel, and she gave it to him. He returned it back to her, saying, “ here, put this by.” He *511sent word to Garnons, that he would take care to make him perfectly secure for all the moneys due from him. Miss Wynn, received the said parcel, which contained the mortgage deed and retained it until the death of her brother, which happéned in August, and she then delivered it to Mr. Garnons. Baron G arrow, who tried the cause, told the jury that the question for them to decide was, whether the delivery to Miss Wynn was, under all the circumstances of the case, a departing with the possession of the deed, and of the power and control over it, for the benefit of Mr. Garnons, and to be delivered to him either in Mr. Wynn’s lifetime or after his death ; or whether it was delivered to Miss Wynn, merely for safe-keeping as the depository, and subject to his future control and disposition j if for the latter purpose, they should find for the defendant; otherwise for the plaintiff. A verdict was rendered for the plaintiff. And a rule, to show cause why a new trial should not be granted, was obtained on the ground, that there had not been a sufficient delivery of the deed. The Court said : can there be any question, but that delivery to a third person, for the use of the party, in whose favor a ■ deed is made, where the grantor parts with all control over the deed, makes the deed effectual from the instant of such delivery? The rule for a new trial was discharged. We see nothing in the above case, to support the plaintiff’s motion. For a delivery in that case had in fact been made to a stranger to the transac-action, for the use of Garnons. In the case now before us, Warren Baldwin did not deliver the paper to the plaintiff, or his agent, or to a stranger for his use. And the case shews, that he never intended to deliver it, or that it should in fact be delivered in his lifetime : for he told a witness, that the paper was then in his possession; and he requested that the witness should, after his death, take it from among his other papers and deliver it. The delivery of a deed, a transmuta- • tion of the possession is an essential ceremony to the complete execution of it, and if Warren Baldwin had then delivered the paper writing to the witness, with a request that it should be delivered to the plaintiff after the death of the grantor, it *512would have been a good deed from the time of the delivery to witness. But he did not delivpr the writing to the witness ; and the parol authority given to the said witness, even ^ g0Q(j ¡n ]aw t0 deliver a deed, was in law instantly revoked by the death of Warren Baldwin. It was argued, that although there was actually no delivery or parting with the (possession of the instrument, yet it was operative as a deed, if the party intended it should be good without more doing. ABut that is inconsistent with the very definition of a deed, /which is a writing sealed and delivered. The argument (is, that the deed shall be good without delivery, if the J party so intended; though the law says, that delivery is essen-fial to the constitution of that instrument. Such an intention cannot overthrow the rule of law. But, in truth, there was no intention that this instrument should presently operate; for the plaintiff’s own evidence was, that the grantor did not intend it should have any effect, until after his death; and, as he retained the instrument until that event, no person could then deliver it. The plaintiff’s counsel has labored this case very much, and he has cited many authorities,. but they do not satisfy us, that the Judge who tried this cause, erred in the law he laid down. The case of Moore v. Collins, 4 Dev. Rep. 384, supports him. Secondly, the plaintiff’s counsel insists, that the Court should have left it to the jury to say, from all the evidence given in, whether the fact of delivery of the deed was proved to their satisfaction. The case does not shew, that the plaintiff offered any evidence tending to prove that fact. The Court might therefore say, that there was no evidence on that point. We think the judgment must be affirmed.

Per Curiam, Judgment affirmed.