#### Doe on the demise of THOMAS BAILEY et. al. v. SAMUEL BAILEY.

Where the maker of a deed of gift handed it to one, with instructions to hold it till he called for it, and died without ever having called for it, it was Held that there was no delivery of the deed.

It was Meld further, that this expression in the donor’s will subsequently made, viz: “ I give and bequeath to my son S. in addition to what I had given him by deed of gift,” certain notes, &c., was not a sufficient reference to the deed above mentioned, to incorporate it into the will, and so pass the land.

Held further, that parol evidence was not admissible to show that this was the deed of gift referred to in the will; and

Eurther, that an entry on the back of the deed of gift made by the draftsman, “ deed ef gift of land,” was not admissible for any purpose.

Ejectment, tried before Caldwell, J, at the last Fall Term of Anson Superior Court.

The parties on both sides, claimed under one John Bailey, and the lessors of the plaintiff, and the defendant are heirs at law. In 1841, the said John executed two deeds of gift in favor of the defendant, bearing the same date, one for the land in question, and the other for slaves and other property, and placed them in the hands of one Boggan, with instructions to hold them till he called for them. He never did call for them, and they remained in Boggan’s possession until John Bailey’s death. In 1844, said Bailey executed his last will and testament in which is the following clause: “I give and bequeath to my son Samuel Bailey, in addition to what I have given him by deed of gift, the principal of the notes of hand which I now hold,” &c.

The defendant offered to prove that on the back of the deed for the land there was an indorsement by the draftsman in these words, “ Deed of gift for land.” The testimony was objected to and rejected by the Court. Defendant excepted.

The defendant contended that the deed of gift was sufficiently referred to in the will to make it a part thereof; and that if it was not, he proposed to prove by parol, which deed was referred to by the will, insisting that it was a latent ambiguity. His honor held the testimony inadmissible, and *45charged the jury that the land did not pass by the deed, because there ivas no evidence that it had been delivered; and that it did not pass by the will, because there was not a sufficient description to identify the deed, and to bring it in as part of the will. The defendant again excepted. Under these instructions, the jury found a verdict for the plaintiff, and the defendant appealed.

Ashe, for the plaintiff.

No counsel appeared in this Court for the defendant.

Battle, J.

There was certainly no delivery of the deed in question. The donor never intended to part with his control over it. Mr. Boggan took it, and was to keep it, not for the donee, but for the donor himself; and there was, therefore, the want of an essential ingredient of a delivery, to wit, the putting of it out of the possession of the donor without his retaining any power or authority to control it. Baldwin v. Maltsby, 5 Ired. Rep. 505 ; Phillips v. Houston, 5 Jones’ Rep. 302.

As there was no delivery of the instrument to make it operate as a deed, another question arises: was it so incorporated in the alleged donor’s will as ft make it operate as a devise of the land to the defendant ? It is very clear that the clause of the will relied upon for that purpose, cannot have that effect. There is no particular deed of gift described, or referred to, and, therefore, the uncertainty and ambiguity is patent upon the face of the will, and cannot he aided by parol proof. Chambers v. McDaniel, 6 Ired. Rep. 226.

The testimony offered and rejected, was manifestly irrelevant and incompetent. We are not certain that we know for what purpose it was offered; and we are very sure that we cannot perceive any purpose it could have answered. It formed no part of the instrument, and it could not prove, or tend to prove, a delivery; and we are surprised that it was offered at all. There is no error in the judgment below.

Per Curiam,

Judgment affirmed.