Barnes v. Barnes
| Decision Date | 18 May 1894 |
| Citation | 37 N.E. 379,161 Mass. 381 |
| Parties | BARNES v. BARNES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E.H. Savary, for plaintiff.
Oliver R. Mitchell, Geo. R. Fowler, and John Prentiss, for defendant.
It is expressly found in the report that the plaintiff never held the deed as the agent or guardian of the defendant or on her behalf, and that it never has been in her possession or in that of any one representing her. The plaintiff has always kept possession of the land, and has always had actual possession of the deed, except when it was at the registry. There is no finding that, when he carried the deed to be recorded, he delivered it to the register as the agent of, or on behalf of, the defendant, or for her use, or to be transmitted to her. It is not found what the consideration was, nor that there was any. When the plaintiff had the deed recorded, he meant to pass the title to the defendant, and supposed that he had done so, but he did no act except to make and execute the deed, and cause it to be recorded. Long after he had received it back, he communicated its existence to the defendant, and spoke of the land as hers, as he supposed it was; but he did not then, or at any time, say that he was holding the deed for her, or would give it to her. She assented to the transaction, so far as she could when told of it. It is well settled in this state that the leaving of a deed by the grantor with the register for record, and the recording of it by the register, do not constitute a delivery. Maynard v. Maynard, 10 Mass 456; Samson v. Thornton, 3 Metc. (Mass.) 275; Brabrook v. Bank, 104 Mass. 228, 231; Hawkes v Pike, 105 Mass. 560; Com. v. Cutler, 153 Mass. 252, 26 N.E. 855; Parrott v. Avery, 159 Mass. 590, 35 N.E. 94. All that this case adds is the unexpressed intention on the part of the grantor, when he had the deed recorded, to pass the title to the defendant. In order to render that intention effectual, he should have manifested, by some act or declaration (which would have been an act), his purpose that what took place should be regarded as a delivery to or for the grantee; otherwise, one might convey land by executing and recording a deed with intent to pass the title, without any delivery of the deed by which the transfer is effected. If the question were a new one, there would, perhaps, be nothing difficult or impracticable in the conception that the...
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