Souverbye v. Arden — 1 Johns. Ch. 240

Majority

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Souverbye and wife against Arden and others.

October 3d.

Headnote

Declarations of the intention, or understanding, of a grantor, different from the intent apparent on the face of a deed, or of conditions annexed to it, to be effectual, must be made at the time of executing it.

If, at the time of executing a deed, there was no delivery, or intention to deliver, these are facts which should be explicitly proved by the grantor. So, a mistake in drawing a deed must be clearly proved.

If a deed has been duly delivered in the first instance, the subsequent custody of it, by the grantor, will not destroy the effect of the delivery.

A deed may be delivered to a* third person, as the servant, or bailee, of the grantee, and such delivery will be valid.

A voluntary settlement, fairly made, is always binding, in equity, upon the grantor,unless there be clear and decisive proof that he never parted, nor intended to part, with the possession of the deed ; and, if he retain it, there must be other circumstances beside the mere fact of his retaining it, to show that it was not intended to be absolute.

THE plaintiff, Eliza Bouquet, and her former husband, Vital Antoine Servant Grangiac, filed their bill against James Arden, De Witt Clinton, and Richard D. Arden, to compel a conveyance, to the plaintiffs, of a lot of land in the city of New-York, and, also, for an account.

The bill charged that the defendant, James Arden, and Eliza, his wife, the father and mother of the plaintiff, Eliza Bouquet, in the year 1804, conveyed to De Witt Clinton and Richard D. Arden, a certain house, warehouse, and lot of land, extending from Greenwich-street into Washingtonsireet, in trust for the said Eliza Bouquet; that the deed was duly acknowledged by the grantors, and at, or about, the time of the execution of it, delivered to the trustees. It was further stated, that Eliza Arden died about the 4th of August, 1806 ; and that Eliza Bouquet, on or about the 26th of January, i 809, married with Grangiac; and that the trustees had paid to James Arden, or permitted him to receive, the rents and profits of the trust estate, of which they refused to render the plaintiffs an account, or to pay

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'¿hem what was due thereon, or to let them into possession of the estate, and the receipt of the rents and profits.

The defendants each put in a separate answer.

James Arden stated, that on or about the 25th of .November, 1809, he was seised in fee of and in a certain messuage and tenements, and that he, and his wife, Eliza, being minded to make some provision for their daughter, the plaintiff, came to a resolution to execute a deed, or conveyance, for the said messuage and tenements, in such a way that the same should not, after his decease, vest in her absolutely, so as to be at her disposal, but that the same should go to her children, if she had any living at her decease, and, if not, return to his family. He further stated, that it was not then, nor ever was, his intention, or design, to part with the possession of the said lots, or to give up the rents and profits thereof, nor to vest the estate in such a manner as that it should go to the plaintiff, Eliza Bouquet, even after his decease, in case she married against, or without, his consent or approbation. The defendant applied to a counsellor at law, to draw a deed conformable to this his intention, which he supposed was drawn accordingly. The deed was upon the following trusts; that is to say, upon trust and confidence, that Eliza Bouquet should stand and be seised of the premises thereby granted, for, and during her natural life; in further trust and confidence, that in case Eliza Bouquet should die, leaving lawful issue, that then the trustees, Richard D. Arden and De Witt Clinton, should stand and be seised df the premises in trust, for such child, or children, of the body of Eliza Bouquet, lawfully to be begotten, in fee simple ; and for want of such children, then in trust for all, and every the person, or persons, their heirs and assigns, for ever, as should be entitled to the same by the laws of the state of Kew-York, in case he, the said James Arden, had died intestate, and the deed had never been made. The deed was executed in the presence of two witnesses, and the defendant says, that bethinks it pro

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bable, and believes, that he and his wife may have used the formal words of delivering the deed; but that neither of ^ the trustees of Eliza Bouquet were present at the execuof it, and that it was not acknowledged by him, or his wife, before an officer authorized to take the acknowledgment thereof. The deed remained in the possession of the defendant until about the 6th of January, 1809, when, it being expressed to him that his daughter, and her sister, .for whom hé had made a similar provision, entertained some apprehension that the deed, in case of his death, might be lost, or destroyed, he consented to place the same in the hands of De Witt Clinton, for their benefit; that he accordingly delivered this deed, with another deed, intended for the benefit of his other daughter, to Clinton; and, at the time of the delivery, stated to him, in the presence of his present wife, and both his daughters, that it was to be explicitly understood that the ineome of the property should enure to him during his life; and that if either of his daughters should marry without his consent, or approbation, that the deed; intended for her benefit, should not operate, or be of use, or to that effect, according to his best recollection and belief; and these expressions, he supposed, were sufficient to create a conditional delivery of the deed, to take effect only after his decease. The defendant further stated, that the yearly value of the estate was about 1,500 dollars, which he had received, ever'since the date of the deed, to his own - use, paying taxes, &c., causing the premises to be insured, and paying the premium of insurance.

Richard D. Arden, in his answer, does not profess to state any thing from his personal knowledge; but as far as his answer goes, it is in confirmation of that of James Arden.

De Witt Clinton, in his answer, stated,x that on or about the 6th of January, 1809, he, at the request of the defendant, James Arden, went to his house, and when there, Arden informed him, that he had requested him to call, with a view

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of depositing in liis hands two several deeds, for the benefit of his daughters, Louisa and Eliza; and that, thereupon, Arden, in the presence of his wife and daughters, delivered to him two deeds, one for each of his daughters ;.the deeds were enclosed in one envelope, which was labelled, or endorsed, as follows : “ Two deeds, viz. one to Louisa Ann Arden, and one to Eliza Bouquet Arden,- each for one lot of ground in Greenwich-street, through to Washington-street, to Richard D, Arden and De Witt Clinton, Esqrs., in trust, 1805.” immediately before, or at the time of the deli very; Arden stated, in the presence of his wife and daughters, that the property intended for each of his daughters was worth upwards of 21,000 dollars, and that the annual rent was 1,500 dollars; and that he wished it to be explicitly understood, that the income of the property should enure to him, during his life; and that if either of his daughters should marry without his approbation, that the deed intended for her benefit should not operate. Both the daughters acquiesced in the declaration, or arrangement, that the rents of the ’property should enure to James Arden during his life ; but neither of them acquiesced in the declaration, or arrangement, that, if either of them should marry without his approbation, the deed intended for her benefit should not operate. There was no certificate of acknowledgment upon the deed. The defendant denied that any application had been made to him, by the plaintiffs, relative to the property, or the rents and profits, or to an account thereof, or the receipt and application thereof; and stated, that shortly after the marriage of the plaintiff, Eliza Bouquet, with Grangiac, the defendant, James Arden, requested him to deliver up the deed to him, and offered to indemnify him from any pecuniary loss in consequence thereof; but this he refused to do.

After the cause was at issue, Grangiac died, and it was then continued in the name of Eliza Bouquet, the surviving

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.plaintiff, and after her marriage with the plaintiff, Sou-verbVe’ in their joint names.

It appeared from the evidence, that the deed in question, with one for the benefit of Loiusa Ann Arden, (afterwards Sterry,) was executed on the 25th of December, 1805, in the bed room of Eliza Arden, who was then confined by sickness; and it is expressly stated, by several witnesses, that Eliza Bouquet and her sister Louisa were present. The plaintiff, Eliza Bouquet, married Grangiac on the 22d of January, 1809, and it was the general opinion of the witnesses, from the notoriety of the subject in the family, that he knew7 of the settlement which had been made by Arden on his daughter,

Alexander Bleecker, who was one of the subscribing witnesses to the two deeds, (A. J. Hamilton, who was examined, was the other,) stated, that he did not remember reading, or hearing them read, and that they were not put into the hands of the plaintiff, and Louisa, but that they were taken James Arden, and that he did not know what became of them afterwards. He, however, said, that his recollection was faint as to the circumstances attending the execution; and Agnes D. Braine, who was also present, said, that James Arden read the two deeds aloud in succession, and after they were executed, gave them to Eliza Arden, his wife.

Louisa Ann Sterry testified, that Eliza Arden, her mother, previously to her death, used frequently to express a very anxious wish to her father, James Arden, that'he would execute deeds making a settlement on the plaintiff and witness, and often urged him to have the two deeds in question signed, and that when the same was done, her mother expressed very great satisfaction on the subject, and said that she was very happy that they were thus handsomely provided fon The witness further testified, that at the time when the deeds were executed, James Arden handed to the witness, and her sister, the plaintiff, their respective deeds, which they laid upon the ledge of a case or wardrobe standing in the room.

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The witness soon after took and locked up her own deed in her own bureau, but the plaintiff’s deed remained in the same place until after the death of her mother; while it remained there, her father used to come into the room, which _ the witness and her sister occupied as their bed room, to get papers which, he kept locked up in the lower part of the case or wardrobe, and upon seeing the plaintiff’s deed lying upon the ledge, he observed, that it was careless to leave it so exposed, whereupon the plaintiff soon afterwards locked it up. The witness stated, that she delivered hér deed to her father for safe keeping, and supposed that her sister, the plaintiff, had done the same, or that it was taken by her consent for that purpose. The witness further stated, that at the time the deeds were delivered to Clinton, her father said that she and the plaintiff must marry with his consent, and that she, the witness, immediately replied, “ Oh no, I will not agree to thaty or words to that effect, and supposed that her father did not speak seriously. The witness said, that neither she nor her sister supposed that the property would be forfeited by their marrying without their father’s consent.

Agnes ZX Braine, a witness before mentioned, testified, that, when the deeds were executed, Arden gave them both to his wife; but the witness, after the death of Mrs. Arden, frequently saw the deeds lying on the ledge of the case before mentioned, in the bed room of the plaintiff, Eliza Bouquet, and her sister Louisa, and was present when they compared their deeds together, •Louisa reading aloud her deed, and the plaintiff and witness at the same time looking over the other ; they then laid down the deeds carelessly in the same place. The witness further stated, that, after-wards, while the witness was sitting with- the plaintiff and her sister in the same room, James Arden came into the room, and took some papers out of the lower part of (he case, and seeing the deeds in question lying as before mentioned, said, “ girls, how can you he so careless with your deeds to which Louisa answered, that they were safe enough

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there, when he replied, u if you do not know how to take care of them, I will do it for you,” or words to that import, and Louisa replied, “ so do,” or “ so you may,” or words to that effect, whereupon Arden took them out of the room, but what became of them afterwards the witness did not know. The witness also testified, that one day afterwards, the plaintiff observed to her father, that she was fearful he had given the deeds to Richard Arden, (one of the defendants,) and that if he had, Richard was not too good to burn them. Arden said he was surprised she should imagine any such thing; that Richard had not got the deeds; whereupon Louisa expressed a wish that he would put them into the hands of De Witt Clinton to keep, to which he replied, that he would do so, if that would make her content.

Elizabeth Talbot testified, that before the death of Eliza Arden, the witness visited her in her bed room, when she pointed to some papers on the desk or secretary, as being the deeds to her daughters, which the witness took up, and looked at what was written on the back of them, but does not now recollect what it was.

Richard D. Arden was examined as a witness on the behalf of James Arden, under an order of the court, and stated, that he saw the deeds shortly after the execution of them, and before the death of Eliza Arden, in the before-mentioned case or secretary, where he understood, and believes, they were left by James Arden at the time ; that the case consisted of an upper and lower part, the upper part being something like a clothes’ press, or wardrobe, and the lower part consist d of drawers, the upper one of which being drawn out, and the front part let down by means of a spring, formed a secretary or place for writing, and keeping papers; that it was in the secretary part that he saw the deeds both before and after the death of his mother; that the keys of both parts, of the case had been left with the plaintiff, and her sister Louisa, after the death of their mother, by her request, and that they being in possession of

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ike keys, had access to the deeds, and might have taken them into their hands while they remained in the room, but that neither of them had possession of them other than as a clerk might be said to have possession of papers, which were accessible to him by means of their being open or exposed in the office or house where he should be employed. James Arden, afterwards, took the deeds from the bed room, and deposited them in his desk, in his office, being the same place where they were kept after they were drawn, and before they were signed.

De Witt Clinton was also examined under an order of the court, in behalf of the defendant, James Arden, but his deposition was, in effect, the same as his answer, and, therefore, is not necessary to be stated.

A considerable part of the evidence consisted of the declarations of James Arden, and Eliza, his wife, as to the intent with which the deeds were executed, and was also intended to prove that his daughters knew of, and acquiesced in the conditions.

S. Jones, jun.. for the plaintiff.

1. The deed was duly delivered to the plaintiff, at the time its execution was witnessed. A deed may be duly executed, though the grantor takes it back into his custody; the title passes, and the deed cannot be avoided, but by matters subsequent. (13 Vin. Ab. (K) 22—(L) 24. pl. 3. Cro.Eliz. 7. Shelton’s case.)

2. The delivery to Clinton was absolute in law. There can be no conditional delivery of a deed, except as an escrow. Now, it could not be an escrow, for it was a delivery to the party herself, that is, to her trustee, for her. (Noy’s Rep. 6. Hobart, 246. 9 Co. 137.) Again, why execute the deed, if he did not mean to deliver it ?

3. There is not sufficient evidence of a parol agreement at the time; and if it was made out with sufficient certainty, it was void. The conditions relied on were not made at the

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time of the first execution of the deed; these conditions were after thoughts of the grantor. The nature of the deed 'S attempted to be altered and qualified by parol proof, which is clearly against every principle of law. The deed is absolute on the face of it; as a bargain and sale, it operates by way of use. Such a reservation, if contained in the deed, would have made it void. The subsequent agreement is a parol reservation of a life estate. A person may, by will, transfer the fee after his death, but he cannot do it by deed, unless there is some previous estate. The condition is repugnant to tbegrant, and must avoid it. (2 And. 64. Popham, 49. Moore, 687. Cro. Eliz. 344. Siderf. 32.) If the grantor had died, after the delivery to Clinton, and before the marriage of his daughter, it would have been a valid deed. The subsequent condition depended on the will of the grantor solely. It was a power of revocation, at his pleasure, and resting in parol. Again, this agreement, or condition, was void by the statute of frauds. (1 H. Bl. 289. 3 Wils. 275. Cowp. 47. 1 Vesey, 317. 3 Bro. 168. Str. 1261. Bl. Rep. 1249. 4 Bro. 514. 5 Ven. Contract, (G) pl. 26.)

To allow a solemn deed to be defeated by parol proof of a subsequent condition, would be of dangerous consequence. (2 Atk. 383. 1 Vesey, jun. 241. Sugd. Law of Vend. 88, 89, 90.)

The defendant cannot, by his answer, correct a mistake in his deed. If he could show a mistake, and wished it to be corrected, he should have filed his bill for that purpose. Again, a delivery to a cestuy que trust, is a good delivery of a deed. (Jenk. Cent. 195, pl. 2. 13 Vin. Ab. 22. pl. 12.)

A deed of bargain and sale operating by way of use, the use must be in the grantee ; for a use in the bargainee will not feed a use to the bargainor; though deeds which operate by way of transmutation of possession may admit of a different doctrine. (Jackson v. Myers, 3 Johns:

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Rep. 388. Sanders on Uses, 129. Dyer, 155. a. 1 Co. 236. b. 137. a.)

There is no provision, in this case, for the estate going over, in case the condition was not performed,

Harison, and Harris, contra,

contended, 1. That there Was no delivery of the deed, at the time of its execution, in 1805. The answer, which is equivalent to the oaths of two witnesses, denied the delivery. The intention of the grantor, to annex the condition to the delivery, was manifest; and a deed may be delivered on conditions. The statute of frauds does not apply to such a case.

. The only delivery, if any, was in 1809, to Mr. Clinton ; and the condition of that delivery is fully proved. The defendants being called on to account, and acting defensively, may give parol evidence. (14 Vesey, 519. 7 Vesey, 219. 6 Vesey, 332, 333, 334. 1 Vesey, 456.) Though the rule might be otherwise, if the defendant was seeking an execution of the agreement. (4 Vesey, jun. 519. 2 Vesey, 219.)

There was no ground of equity on which this court can interfere to help the plaintiffs, at least, during the lifetime of the father. No rents were due at the time the bill was filed, and none ever came to the hands of either of the trustees. They were competent witnesses, being made defendants for form sake only. Clinton fully proves that the condition of the delivery to him, that Arden was to have the rents and profits during his life, was fully assented to by the daughters. The very fact of this delivery, in 1809, is evidence that the deed had not been delivered before. In the case of Villers v. Beaumont, (1 Vern. 100.,) the party was not to have possession during life. The cases of voluntary settlements are those in which they were to take place after death.

Where a deed is deposited with a trustee, in trust, to receive the rents and profits during his life, there is no case

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where a court of equity will force a trustee to account, contrary to the terms of the trust,

Though, at law, the delivery would take effect, free from conditions, yet, in equity, it will be otherwise, and the trustee will be considered like a third person at law, in the case of an escrow, and the terms of the delivery of the deed be supported. Where a party comes into equity, to compel a trustee to perform, the court will look at the intent, and not compel a trustee to act against the intent of the parties. The defendants may show the intent, as to the conditions, in equity; and so far, as ground of equitable relief, they may show the mistake, in not inserting the conditions in the deed, agreeably to the instructions given to the counsel for that purpose. The real sense and meaning of the parties must prevail here, and the court will not deprive the grantor of the rents and profits during his life, contrary to that intent. A consideration of one dollar will make a resulting trust enure to the grantor, in a deed of bargain and sale.

This court may, in its discretion, relieve against a voluntary deed. (Prec. in Ch. 84.)

Riggs, in reply,

insisted, that the sealing and formal execution of the deed, was the perfection of the act; and the burden of proof lay on the grantor to show, clearly, that there was no delivery, at the time, contrary to the face of the deed. (Wheelwright v. Wheelwright, 2 Tyng's Mass. Rep. 447.)

Arden, in his answer,

did not pretend that there was any explanation given to the witnesses, at the time of the execution of the deed, of any terms or conditions different from what appeared in the deed itself. If any such conditions were intended, it was the duty of the grantor to explain them to the witnesses at the time. The evidence of the two subscribing witnesses, is strong and conclusive as to the solemn execution and delivery of the deed, without any terms,

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or explanation of the grantor, being declared or expressed. The mother of the grantee died in August, 1806, and until that time, the deed was in a drawer, under the power and control, if not in the actual custody, of the grantee.

The parol evidence was inadmissible; it was against the statute of frauds. A trust cannot be created by parol.

Several points have been raised respecting the deed mentioned in the pleadings.

1. It is contended, on the part of the plaintiffs, that the deed was perfected by the sealing and delivery, on the 25th of December, 1805, and that the estate then passed and vested in the grantees, for the uses and purposes therein declared.

In my opinion, this allegation is fully and effectually supported by the proof.

The answer of thegrantor, to this point, is, “ that he and Ms wife signed, and, as he believes, sealed the deed, at or about the time it bears date, in the presence of two witnesses; and he thinks it probable, and believes, that he and Ms wife may have used the formal words of delivery.” He says, further, that he had applied to Abraham Skinner to draw the deed, so as not to part with the possession and profits of the lot during his life, and so as that the same should never vest in the plaintiff, his daughter, if she should marry without his consent and approbation; that he supposed the deed was so drawn; and that it remained in his possession and power from the time it was so signed and scaled, until the delivery to Mr. Clinton, in January, 1809.

The first reflection that arises upon this answer is, that it does not aver or pretend that any explanation was given to the witnesses, or to the plaintiff, or others, at the time of the execution of the deed, of the understanding or intentions of the grantor, at to its operation.

It was his duty to have spoken then, and to have declared his intention, if he had any, inconsistent with the. natural

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and necessary result of that solemnity. The general princiP^e of law is, that the formal act of signing, sealing, and delivery, is the perfection and consummation of the deed, and lays with the grantor to prove clearly that the appearances were not consistent with the truth. The presumption is against him, and the task is upon him to destroy that presumption, by clear and positive proof, that there was no delivery, and that it was so understood at the time. If he understood, or supposed, that the deed was drawn conformably to his view's, (as he asserts,) there was no need of any check to a complete and valid delivery, and he must have intended such delivery, as the deed would always have carried within itself the evidence of his intentions. I should conclude, therefore, from the answer alone, that there was a delivery of the deed, in judgment of law, in December, 1805. If there was a mistake in the drawing of the deed, the defendant had not undertaken to show it. He has not examined Skinner, who drew the deed,' and he does not say that he had not perused the deed before he signed it. The presumption is irresistible that he must have known of its contents, and being of competent capacity to do business, he is justly chargeable with that knowledge. The mistake must be clearly and strongly proved, before the court can correct a deed or writing. (1 Ves. 317. 3 Bro. 454. 6 Ves. 333, 334.)

The evidence of the execution of the deed consists of the testimony of .four persons who were present, and three of whom were subscribing witnesses. Bleecker and Hamilton attest to the execution of the deed in the usual way, and that they subscribed to it as witnesses. There was no condition, qualification, orexplanation made. Itwas on a Christmas day, in the bedroom of Mrs .Arden, whereshewas confined by sick- . ness: Bleecker says he understood the purport of the deed, though his recollection is faint as to the circumstances respecting the execution, and he does not remember reading, or hearing it read. Mrs. Braine was also present, and saw

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the deed executed; and she recollects that the grantor read the deed aloud at the time. Mrs. Sterry was also present, * and saw the deed executed, and heard the company congratúlate her and her sister on the present of the deed ; Mrs. Arden also expressed great satisfaction.

These are all the witnesses who were present at the execution of the deed, who have been examined in the cause; and as there was no explanation given, or conditions annexed, contrary to the natural and legal import of the deed, the proof of the due execution of it, so as to pass the estate, must he deemed to be full and absolute. If an act, so authentic, can be impaired by mental reservations, at the time, or by subsequent loose and idle conversations, there would be no safety in ordinary transactions, and no certainty in legal solemnities.

There has been a good deal of examination and inquiry as to the custody of the deed from the time of its execution, until the actual delivery of it to Clinton, in 1809. This inquiry does not appear to me to be very important; for, whatever may have been the fact, as to the custody of it from 1805 to 1809, it cannot affect the operation of the deed, provided it was duly delivered in the first instance, so as to become valid in law. But these inquiries into the subsequent history of the deed, tend rather to confirm than weaken the direct and positive proof of the first and absolute delivery.

We have seen that the defendant alleges, in his answer, that the deed continued in his possession and power. One of the subscribing witnesses (Bleecker) says, that, to the best of his recollection, the deed was not put into the hands of the grantee, but was taken by the grantor. Mrs. Braine' says, that it was delivered, by the defendant, to his wife. This fact is perfectly consistent with Bleecker1 s recollection. Mrs. Sterry says the deed was handed by the defendant to her sister, the plaintiff, and laid by her on the ledge, or projection of the case, or wardrobe, in the room; and she proves that it remained in that open place until after Mrs.

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Ardenos death, which was in August, 1806. That the defendant frequently came into the room for papers, which he kept locked up in the lower part of the case, and once made mention of the careless situation of the deed. Mrs. Braine, who spent a considerable part of her time at the house of the defendant, the summer after Mrs. Ardenos death, proves the same fact about the situation of the deed, and the censure of the defendant upon such carelessness. Mrs. Talbot mentions a circumstance attending a conversation with Mrs: Arden, the summer she died, which corroborates the testimony of the other two witnesses as to the manner in which the deed was kept.

The testimony on the part of the defendant (/. Arden) is not in contradiction with the above history of the deed: Richard D. Arden saw the deed before the death of his mother, in the case or secretary in her bed room, and he says, that the plaintiff and her sister had the keys of the room after their mother’s death, and at her request, and that the deeds remained for a considerable time in the bed room, after his mother’s death, when the defendant took both the deeds, and put them in his desk in his office below, where they had been after they were drawn, and before they were signed. Mr. Clinton states, in his answer, that when the defendant, (J. Arden) delivered the deeds to him, they were enclosed in one envelope, and endorsed, “ Two deeds, viz. one to Louisa, and one to Eliza B. Arden, each for one lot, &c., to Richard D, Arden and De Witt Clinton, in trust, 1805.”

The conclusion, from all this testimony, is, that the grantor had not the custody and possession of the deed, until some time after the death of the mother of the-plaintiff; but that the deed was in the actual possession of the plaintiff, or of her mother, as her agent and bailee. I am perfectly satisfied of the truth of this conclusion.

If we recur to the adjudged cases, and to the acknowrledged rales of law on this subject, they will be found in

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favour of the valid operation of this deed, whether the actual delivery was to the plain tiff or to her mother. , This is much stronger, and attended with more circumstances of a due delivery, than Shelton's case. (Cro. Eliz. 7.) In that case, the deed was sealed in the presence of the grantee and others, and was read, but not delivered; nor did the grantee take it, but it was left behind in the same place ; and yet, in the opinion of all the justices, it was a good grant, for the parties came together for that purpose, and performed all that was requisite for perfecting it, except an actual delivery; being left behind, and not countermanded, it was held to be a delivery in law. In the ancient authorities, and at a time when the execution of deeds was subjected to great technical formality and strictness, it was admitted, that if ^."execute a deed to B., and deliver it to C., though he does not say to the use of B., yet it is a good delivery to B., if he accepts of it, and it shall be intended that C. took the deed for him as his servant. (Paston, J., Year Book, 3 H. 6 . 27. A. and Anon, cited in 13 Viner, 23. K. pl. 12. A.) The case of Taw v. Bury, (2 Dy. 167. b.) is a strong determination on this point: A. delivered a deed to B., to deliver over to C., as his deed ; B., did so, and C. refused to accept the deed, and it was, accordingly, left with him by B. It was held to be the deed of A., and enuring to the benefit of C., by the first delivery, and before any actual delivery over to the party ; and that the subsequent refusal of the party could not undo it as a deed from the beginning. To the same purpose is Alford and Lea^s case, in 2 Leon. 110.

It is not to be understood that mere formal words of delivery will, in all cases, bind the party, and render the deed absolute. If it be declared, or agreed, at the time of execution, that the deeds is not to pass out of the possession of the grantor, until certain conditions are complied with, the deed will not operate until certain conditions are fulfilled. This has been so ruled at law, in the cases of Jackson v. Dunlap, and of the Derby Canal Company v. Wilmol, (l Johns.

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Cas. 114. 9 East, 360.,) and there is much good sense and equity in the decision. But if there he no such agreement or intention made known at the time, and both parties are . and the usual formalities of execution take place, and the contract is, to all appearance, consummated, and the deed is left in the power of the grantee, or in the custody of his particular friend, without special instructions, there is no case to be found in law or equity, in which such a delivery is not held binding.

A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof, that he never parted, nor intended to part, with the possession of the deed ; and even if he retains it, the weight of authority is decidedly in favour of its validity, unless there be other circumstances, beside the mere fact of his retaining it, to show it was not intended to be absolute: This will appear from an examination of a few of the strong- . est cases on each side of the question.

In Naldred v. Gilham, (1 P. Wms. 577.,) the aunt made a voluntary settlement upon her nephew, then an infant of only four years old, and both parts of the deed were kept in her own possession, ahd, some years afterwards, she made a different settlement on another nephew. The circumstances attending the execution of the deed do not appear, but Lord Macclesfield refused to establish the first settlement, and concluded, not only from the fact of her keeping the custody of both parts of the deed, but from several other circumstances, that it was a case of surprise and imposition in making the first settlement absolute without power of revocation; and in a case which I shall presently mention, Lord Hardwicke said, that this decision was not applicable to every case, but was dependent upon particular circumstances. In Cotton v. King, (2 P. Wms. 358.,) the mother made a voluntary settlement, in trust for her children, and delivered the duplicate deeds into the hands of her attorney and agent, “ with a strict charge that he should not part with them;” and no

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other person was privy to the transaction, and Lord Chan. King held the settlement not binding. Again, in Ward v. Lant, (Prec. in Ch. 182.,) the father executed a voluntary bond to his daughter, without any condition, and payable immediately; but he always kept it by him, and it was proved to have been his intention that no use should be made of it, and that it was only to protect him from taxes, and it was, accordingly, set aside.

It is easy to perceive that there is no analogy between these cases and the present; and yet they are, perhaps, as strong as any to be met with in favour of the failure of the settlement. There are other cases which show, affirmatively, that the mere retention of the deed by the grantor, is not sufficient to defeat it.

In Clavering v. Clavering, (2 Vern. 473.,) a voluntary deed of settlement, in trust, made in 1684, always kept by the grantor in his custody, and never published, and found, after his death, among his papers, was held to^control a subsequent settlement, in 1690. The Lord Keeper said, that though the first settlement was always in the grantor’s custody, that did not give him a power to resume the estate $ and he referred to Lady Hudson’s case, where a father, having taken displeasure at his son, made an additional jointure on his wife, but kept it in his power; and being after-wards reconciled to his son, cancelled the additional jointure, and died; and his wife was allowed, after his death, to recover on the cancelled deed. The decree of the Lord Keeper was, afterwards, affirmed in the house of lords. (1 Bro. P. C. 122.) The decision in Boughton v. Boughton, (1 Atk, 625.,) was to the same effect, and Lord Hardmickc made it, with the case of Naldred v. Gilham full in his mind. He held, that a voluntary deed, formal as to its execution, and without a power of revocation, and kept by the grantor uncancelled, was not to be defeated by a subsequent will. He went still further, in the case of Johnson v. Smith, (1 Ves. 314.) The father, in that case, assigned all his

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bonds, and other securities, to his natural daughter; but the deed was never delivered to her, but put, by him, among his own waitings, and he continued to deal with the securities . as his own. He afterwards executed a bond to the daughter ; and the Chancellor, after his death, put her to her election, between the deed of assignment and the bond.

I am accordingly of opinion, that the deed in question was duly executed, in December, 1805, so as to pass the estate; and that it was not, and could not be, defeated by any subsequent acts or declarations of the grantor. A voluntary settlement, without power of revocation, cannot be revoked. (Villers v. Beaumont, 1 Vern. 100. Bale v. Newton, 1 Vern. 464.) It becomes, then, unnecessary to examine and decide on the force and effect of such a delivery as that made to Clinton, in 1809. If a deed be duly executed, in the first instance, so as to take effect, any subsequent delivery is null and void. (Co. Lit. 48. b.)

The plaintiffs ought to be let into the possession, and the defendant, James Arden, to account for the rents and profits, from the time of the marriage of the plaintiff with Servant, the 22d of January, 1809, when she ceased to be supported in the family of the defendant; and let a reference be made to a master for that purpose ; and all other questions are, in the mean time, reserved.

The following decree was thereupon entered:

" That the deed of conveyance from the defendant, James Arden, and Eliza, his then wife, to the' defendants, De Witt Clinton and Richard D. Arden, bearing date the 25th of November, 1805, mentioned and set forth in the pleadings and proofs in this cause, was duly executed and delivered by James Arden, and Eliza, his then wife, on the 25th of December, 1805, so as to pass the estate and interest in the messuage and premises therein described, to the defendants, Be Witt Clinton and Richard D. 'Arden, and to vest the same in. them, to the uses, and upon the trusts, therein

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mentioned ; and the deed of conveyance is hereby declared valid and effectual, in the law, accordingly. And it is further ordered, adjudged, and decreed, that the plaintiffs, Saint Martin Souverbye, and Eliza Bouquet, his wife, in right of. Eliza Bouquet, be forthwith let into the possession of the premises mentioned and described in the deed of conveyance from the defendants, James Arden, and Eliza, his then wife, to the defendants, De Witt Clinton and Richard D» Arden, bearing date the 25th of November, 1805, and into the perception of the rents and profits thereof, in arrear, and unpaid, and hereafter to accrue and become payable, or that De Witt Clinton and Richard D. Arden be immediately let into the possession thereof, as trustees, upon the trusts, and to the uses, in the deed expressed and declared, of and concerning the same. And in case De Wilt Clinton and Richard D. Arden, or the survivor of them, shall take possession of the premises, they, or the survivor of them, shall receive and take the rents and profits thereof, in arrear and unpaid, and which shall hereafter accrue, and be* come payable, in trust for, and pay over the same, from time to time, to Saint Martin Souverbye, and Eliza Bouquet, his wife, in right of Eliza Bouquet, during their joint-lives, and to Eliza Bouquet, during her life, if she shall survive Saint Martin Souverbye, her husband $ or they, DeWitt Clinton and Richard D. Arden, and the survivor of them, shall permit Saint Martin Souverbye, and Eliza Bouquet, his wife, in right of Eliza Bouquet, to take the rents and profits during their joint lives; and that Eliza Bouquet is to take the same, during her life, if she shall survive her husband ; and after the death of Eliza Bouquet, one of the plaintiffs, the rents and profits of the premises shall be received, paid, and applied, according to the uses and trusts in the before-mentioned deed of conveyance, bearing date the 25 th of November, 1805, limited and declared. And that the trustees, or the survivor of them, and any other person then claiming an interest therein, un

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der the deed of conveyance, shall be at liberty to apply to this court, for its direction in that behalf. And it is further ordered, adjudged, and decreed, that the defendants, De Witt Clinton and Richard D. Arden, shall, within twenty days after notice of this decree, cause the deed of conveyance to be acknowledged, or proved, and recorded, according to law, for the greater safety of the title of the plaintiffs in this cause to the premises therein contained, and all others who may become interested therein. And it is .further ordered, adjudged, and decreed, that the plaintiffs, during their joint lives, and Eliza Bouquet, after the death of Saint Martin Souverbye, her husband, if she shall survive him, shall he at liberty to use the names of the trustees, or the survivor of them, and to have the use of the deed of conveyance, for the purpose of prosecuting at law, or taking any reasonable measures to obtain the possession of the premises, and for receiving the rents and profits thereof, according to their, and her rights to the same, as herein-before declared and adjudged. And it is further ordered, adjudged, and decreed, that the defendant, James Arden, account with the plaintiffs in this cause, for the rents and profits 'of the premises, from the 23d of January, 1809, and that it be referred to one of the masters in chancery to take the account accordingly; and that, in taking the account, the master charge James Arden with the rents of the premises received, or which, without wilful default, might have been received for the same; and that the master make all just allowances to James Arden, for taxes and repairs ; and that the master who shall take the account, report thereon, to the court, with all convenient speed. And it is further ordered, that the question of costs, and all further directions, be reserved until the report shall come in.”