Duer v. James

• Decision Date: 04 June 1875
• Citation: 42 Md. 492
• Parties: JOHN DUER, JR., and others, trading as DUER, NORRIS AND COMPANY, and JAMES CORTLAN, JR. v. HENRY JAMES, and others.
• Court: Maryland Court of Appeals

42 Md. 492

JOHN DUER, JR., and others, trading as DUER, NORRIS AND COMPANY, and JAMES CORTLAN, JR. v. HENRY JAMES, and others.

Court of Appeals of Maryland

June 4, 1875

APPEAL from the Circuit Court of Baltimore City.

The bill of complaint in this case was filed by the appellants against the appellees, seeking to have the benefit of a deed of trust which was made and afterwards destroyed under the circumstances set forth in the opinion of this Court. The Court below (PINKNEY, J.,) by the agreement of the parties passed a pro forma decree dismissing the bill, and the appeal is taken from this decree.

The cause was argued before BARTOL, C.J., GRASON, ALVEY and ROBINSON, J.

William A. Fisher and William Henry Norris for the appellants.

There was in this case a sufficient delivery of the deed to vest the title in James and Eareckson. The acts done by Davis, in executing and acknowledging the deed, and then leaving it with the justice to be handed to the grantee, and the directions given for its being recorded, without any condition, amounted to a delivery of it. Scrugham vs Wood, 15 Wendell, 545; Doe vs. Knight, 5 Barn. & Cr., 671; Lloyd vs. Bennett, 8 Carr. & Payne, 124; Kidner vs. Keith, 109 E. C. L., 42; Exton vs. Scott, 6 Simons, 31; Souverbye vs. Arden, 1 Johns. Ch., 254-5; Verplanck vs. Sterry, 12 Johns., 554; Church vs. Gilman, 15 Wendell, 656; Dawson vs. Dawson, Rice Ch. ( S. C.,) 243.

The estate vested in the grantees from the moment of the delivery of the deed to the justice for them, the deed being complete in fact without affidavit. Hoopes vs Knell, 31 Md., 550; Taw vs. Bury, 2 Dyer, 167 b; Alford & Lea's Case, (Croke Eliz., 54,) 2 Leonard, 110; Souverbye vs Arden, 1 Johns. Ch., 255; Church vs. Gilman, 15 Wendell, 656; Doe vs. Knight, 5 Barn. & Cress., 671; Reynolds vs. Bank of Va., 6 Grattan, 174.

The most that can be claimed is that there would be a species of remittitur when the grantees declined to accept. But this could only be subject to the rights of the cestuis que trust which had become fixed, when the title vested by the delivery. Read vs. Robinson, 6 Watts & Serg., 331; Reynolds vs. Bank, &c., 6 Grattan, 174; Field vs. Arrowsmith, 3 Humphrey, (Tenn.,) 442; Dawson vs. Dawson, Rice Eq. (S. C.,) 243; Brevard vs. Neely, 2 Sneed, 171; Webb vs. Dean, 21 Penn., 32.

But in any event the deed operated as an equitable contract to convey the estates therein mentioned, in pursuance of a covenant contained in the building contract, and binds the defendants, James and Eareckson, who took with knowledge of all the facts, and in open fraud of the rights of the appellants. Alexander vs. Ghiselin, 5 Gill, 184, &c. Johnston vs. Canby, 29 Md., 216, &c. Moncrieff vs. Goldsborough, 4 H. & McH., 281; Burn vs. Carvalho, 4 Mylne & Craig, 690; 1 Story's Eq., secs. 395-7.

If the trustees declined the trust, the execution of it devolved upon the Court of Equity, which will appoint new trustees and administer it. Read vs. Robinson, 6 Watts & Serg., 329; King vs. Donnelly, 5 Paige Ch., 46; Reynolds vs. Bank of Va., 6 Grattan, 174; Field vs. Arrowsmith, 3 Hump., (Tenn.,) 446; Dawson vs. Dawson, Rice Eq. (S. C.,) 243.

John H. B. Latrobe and S. Teackle Wallis, for the appellees.

The deed did not express the intention of the parties. Johnson vs. Baker, 4 Barn. & Ald., 440; Doe dem. Lloyd vs. Bennett, 34 Eng. C. L. Rep., 324.

There was no delivery of the deed. "Delivery is either actual; i. e. by doing something and saying nothing; or else verbal, i. e. by saying something and doing nothing. By one or both of these means it must be made. And although the party to whom it is made take it to himself, or happen to get it into his hands, yet it will do him no good, nor him that made it any hurt, until it be delivered." Shep. Touch., 57, (marg.,) Pek., sec. 127. "But if a man seal and acknowledge before a mayor, or other officer appointed for that purpose, a writing provided for a statute, or a recognizance, this acknowledgment before such an officer, shall not amount to a delivery of the deed, so as to make it a good obligation, if it happen not to be a good statute or recognizance." Shep. Touch., 58, (marg.)

"But if a man throws a writing on a table and says nothing, and the party takes it, this does not amount to a delivery, unless found to be put there with intent to be delivered to the party." 1 Leon., 140. "And if a patron draws a presentation in writing, and puts his seal to it, and leaves it in his study, and the party for whom it is, get it without the privity or license of the patron and brings it to the bishop, and is thereupon instituted and inducted, yet it is all void." Yelv., 7; Shep. Touch., 58, note 28.

Delivery is one of the elements in a valid deed. Smith on Cont., 5; 2 Bl. Com., 295; Co. Litt., 171 b; Clarke vs. Ray, 1 H. & J., 323; Critchfield vs. Critchfield, 24 Penn., 102.

In order to determine whether or not a proper delivery exists, two things must concur.

First. The grantor must part with the control and possession of the instrument, and this even when placed in the hands of a third person for the grantee's use.

Second. There must exist an express or implied intention to deliver the deed, when the act constituting such delivery takes place.

As to the first characterstic, see Baker vs. Haskell, 47 N. H., 479; Maynard vs. Maynard, et al., 10 Mass., 456; Younge vs. Guilbeau, 3 Wall., 641; Demesney vs. Gravlin, 56 Ill., 93.

As to the second essential element of a delivery, see Fisher, et al. vs. Hall, 41 N. Y., 421; Johnson vs. Baker, 4 B. & Ald., 440; Leppoc, et al. vs. Natl. Union Bank of Md., 32 Md., 136; Elsey vs. Metcalf, 1 Denio, 323; Rutledge vs. Montgomery, 30 Georgia, 899; Carr vs. Hoxie, 5 Mason, 60; S. C. Moore, 300; 20 N. Y., 76; Wheelright vs. Wheelright, 2 Mass., 447; Stewart vs. Redditt, 3 Md., 79.

The instrument to Eareckson and James, left with the magistrate to be approved, and if appoved, executed by them, never passed out of the control of Davis--it was a revocable instrument--he was justified in destroying it, and the subsequent one to James and Eareckson was valid and should be sustained.

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 be 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 words, 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 ...