The opinion of the court was delivered hy
Strong, J.
It is unnecessary to notice in detail the several errors which have been assigned to this record. They all refer to the instruction given by the court to the jury respecting the effect of the alleged deed of March 7th 1832, from William Clark and wife to their son Jerry Clark. Whether that instrument could have any effect at all or not, depended upon the question whether it had been consummated by delivery. That is a question of fact, and it was submitted to the jury as such. Of this there is no complaint, but it is urged, that there was error in the instruction as to what constitutes a delivery. Doubtless, the recording of a deed is evidence of a delivery, or, more properly, it is evidence from which a delivery may be presumed; but still it affords only a ground for a presumption, a presumption of fact; it may be rebutted and destroyed by other evidence. In this case, the instrument had been recorded by some unknown agency in 1832. This was all the evidence there was of delivery. On the other hand, it was proved that possession of the land was never taken by the grantee; that the grant^ continued in possession ten years after the date, and the recording of the deed, when he sold the land to one under whom the defendant in error claims; that Jerry Clark, the grantee, never had the deed actually delivered to him; that he had no knowledge of its existence until 1857, twenty-five years after its date; and that he never paid the consideration-money mentioned in it. The charge of the court was in effect that, if these facts were proved, together with maid fides in Jerry Clark’s vendee, they overcame the presumption of delivery arising from the unexplained recording of the deed, and imposed upon the plaintiff in error, who attempted to set it up as a valid instrument, the necessity of proving more than the mere record.
We think the instruction of the court below not open to exception. Actual delivery was directly disproved. It is true, that actual delivery is not in all cases necessary. It is sometimes said to be a question of intent, but it must be an intent to have the deed.operate immediately; and an intent manifested by word or action. Here, the instrument itself shows that it was not the *255intent of William Clark and wife that it should take effect, except upon the payment of the consideration. It was not a deed of gift, but one of bargain and sale, for the stipulated price of four hundred dollars. The payment of the consideration was necessary to transfer the use and make the instrument operative. But the proof was positive that the consideration was never paid. In this particular it differs from a deed of gift, or a release, of which the law will presume a delivery without proof of acceptance, and that, though the donee or releasee may not have known of the instrument. In such cases, his assent is inferred from the character of the writing, as beneficial to the donee or releasee. It is true, there is here a receipt acknowledging payment of the consideration, but this is of no account against the positive testimony of Jerry Clark that it never was paid. The case of the Lessee of Mitchell v. Ryan, 3 Ohio (N. S.) 337, upon which the plaintiff in error relies, differs from the present in several important particulars. In that case, the transaction was a gift, not a sale. The alleged donee was an absent minor, and there was positive proof that the donor directed the deed to be put upon record. All these facts are wanting in the case now before us. Nor is it to be overlooked,, that Boardman cannot be regarded as a bond fide purchaser for value from the alleged grantee and without notice, as was the claimant under the deed in Blight v. Schenck, 10 Barr 285. The Court of Common Pleas held, in the present case, that the facts already recited rebutted the presumption of delivery arising from the recording of the deed, only, if added to them was the other fact, that Boardman, who claimed under Jerry Clark, was not a bond fide purchaser. Whether he was or not, was submitted to the jury, and their verdict established that he was not. It may well be, that stronger evidence is required to rebut the presumption of delivery when the deed is set up by a bond fide purchaser who has advanced his money upon the faith of it, than when it is set up by the grantee himself, or one who stands in his shoes. But where the grantee denies any delivery or payment of the consideration, where he negatives all possession under the deed, or knowledge of its existence, where the instrument is one that cannot operate without his assent and his action, it is not for another who has surreptitiously obtained a conveyance from the grantee to set up the deed as having been delivered, without more evidence of delivery than is furnished by the fact that it is found upon record.
We think, therefore, the objections urged against the charge of the court are without substantial foundation.
The judgment is affirmed.