Dwinell v. Bliss
58 Vt. 353
Vt.
1885
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The opinion of the court was delivered by

Ross, J.

This is a bill to have a deed declared void and inoperative, given by the testatrix to the defendant. The master has found, although the testatrix “left the deed in the possession of the defendant, at the time it was executed, that she did not deliver it to him as a deed at that time or ever after.” Says Mr. Washburn in vol. 3, 282 (4 ed.) of his work on Real Property: “ That delivery is essential to give effect to a deed, authorities might be multiplied indefinitely.” Stiles v. Brown, 16 Vt. 563, so holds. Delivery may either be “ actual, that is, by doing something and saying nothing, or verbal, that is, by saying something and doing nothing, or it may be by both.” 2 Wash. Real Prop. *357578. If the deed, duly executed be lying on the table in the presence of the parties, and the grantor tells the grantee to take it, and he does so, that would be a verbal delivery of the deed. But if in such a case the grantor should take the deed and hand it to the grantee, and he should take it, though no word be spoken,'that would be an actual delivery of the deed. So if the grantor throws the deed upon the table, intending the other party to take it, and he does so, it will be a delivery though nothing be said. If, however, the deed is laid upon the table without any such intention, and the grantee takes it up, it will not be a delivery. Wash. Real Prop, supra. Hence, the mere possession of the deed by the grantee, although, if nothing more is shown, a delivery will be presumed, does not determine that there has been a delivery of it. It depends upon whether such possession has been acquired with the intention of the grantor that he should receive it as an executed deed to take effect forthwith. The intention with which the grantor parted with the possession of the deed is a fact to be determined by the trier. If the grantee obtains or takes possession of the deed without the consent or intention of the grantor that he should receive it as an operative conveyance, it has no force as a deed. The master has found that this instrument was never delivered as a deed. Hence, it never became operative. The orator has not set forth this cause in her bill as a ground of relief. The orator cannot, therefore, have the deed declared void on this ground without amending his bill. The defendant wrongfully and against the express order of the testatrix, caused the deed to be recorded, so that the orator has need of the relief prayed for. We do not think that the master has found that the defendant was guilty of any fraud in procuring the deed. There was no attempt by the testatrix to deliver the deed to the defendant, upon conditions not expressed in the deed, nor as an escrow. Hence, the authorities on these subjects brought to our attention by the learned and diligent solicitor of the defendant need *358not be considered. Whether the expression used by the master, “that she did not deliver it to him as a deed,” means any more than that she left the instrument with the defendant accidentally, or as her instrument to be kept for her until some further action, need not be inquired into, inasmuch as he finds it was never delivered. The result is the pro forma decree of the Court of Chancery is reversed and the cause is remanded with leave to the orators to amend the bill by adding the cause of the non-delivery of the deed, and for the Court of Chancery then to render a decree for the orators declaring the deed null and void. The orators are to recover their costs in this court. The costs in the Court of Chancery are left in the discretion of that court. .