Barnes v. Barnes, 161 Mass. 381

Barnes v. Barnes

161 Mass. 381 | Mass. | 1894

Morton, J.

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 Met. 275. Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, 231. Hawkes v. Pike, 105 Mass. 560. Commonwealth v. Cutler, 153 Mass. 252. Parrott v. Avery, 159 Mass. 594. All that this case adds is the unexpressed intention on the part of the grantor when he had *384the 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 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 act of leaving a deed with the register for record by the grantor with the intent on his part thereby to vest the title in the grantee should constitute the register the agent for delivery of the grantee, and that upon the assent of the grantee the transaction should take effect as a valid delivery. But we think the law is otherwise in this State, and that the ruling of the presiding justice was correct, and that the plaintiff is entitled to a decree. Decree accordingly.