Goodrich v. Walker

1 Johns. Cas. 250 | N.Y. Sup. Ct. | 1800

Per Curiam.

Every objection to the competency of Markum, as a witness, if any existed, was removed by the mutual releases executed between him and the defendant.^(a)

As to the second point. The discharge or.release must be intended to have been well delivered. Nothing to the contrary appears. A formal' delivery is not essential, if there be any act evincing the intent.^(b)

We also think with the judge at the trial, that the weight of evidence was in favor of the defendant ;- and that the plaintiff ought not to recover.^(a)

We are, therefore, of opinion, that a new trial ought not to be granted.

Rule refused!

(a) 1 Phil. Ev. 133, Cowen & Hill’s ed. and n.

(b) Woodman v. Coolbroth, 7 Greenleaf, 184. Hughes v. Hasten, 4 J. J. Marsh. 573. “ The acts and circumstances which shall be taken as sufficient evidence of delivery, are various. A delivery is frequently presumed." Math. Pres. Ev. 39. It is seldom, indeed, that a party is able to show a distinct, formal act of delivery. The delivery may, therefore, he inferred from words without acts, or from acts without words, or from both combined. Hughes v. Easten, 4 J. J. Marsh. 572, 3. Verplank v. Sterry, 12 Johns. Rep. 536. Folly. v. Vantuyl, 4 Halst. 152. M’Kinney v. Rhoades, 5 Watts’ Rep. 344. Byers v. M'Clanahan, 6 Harr. & John. 250, 255, 6. Gardner v. Collins, 4 Mason, 398.”

As a general rule, “ to constitute a complete delivery of a deed, the grantor ■ must do some act putting it beyond his power to revoke. Frtshie v. McCarty, 1 Stewl & Port. 61. See Maynard v. Maynard, 10 Mass. R. 458. The delivery need not be to the party, but may be to another person by sufficient authority from the party ; or, it may be to-a stranger, for and in behalf and to the use, of the party, without authority ; and in either case, if unconditional, the deed will take effect instanter. Alsop v. Swathel, 7 Conn. Rep. 503. Verplank v. Sterry, 13 Johns. R. 536, 546, 551, 3. Jackson ex dem. Eames v. Phipps, id. 418, 421. Sounerbye v. Arden, 1 Johns. Ch. R. 340. Cook’s adm’r v. Hendricks, 4 Monroe, 503. Raymond v. Smith, 5 Conn. Rep. 559. Doe ex dem. Garnons v. Knight, 8 Dowl. & Ryl. 348, 364, 5. Chess v. Chess, 1 Pennsylv. Rep. 32. McKinney v. Rhoades, 5 Watts’ Rep. 344. Burns v. Hatch, 3 N. Hamp. Rep. 304. Daniel v. Bratton, 1 Dana, 210. Church v. Gilman, 15 Wend. 646. Inlow v. The Commonwealth, 6 Monroe, 74, A deed may be delivered by depositing it in the post office, directed to the party for whom, it was made. M’Kinney v. Rhoades, 5 Watts’ Rep. 343, Or, by depositing it in the proper office to be recorded as an executed deed, if accepted afterward by the grantee. Frisbie v. McCarty, 1 Stewart & Porter, 61. See Daniel v. Bratton, 1 Dana’s Rep. 210. But a deed signed, sealed and deposited, to be kept or hejd by the depositee, subject to the order of the depositor, is not delivered, either actually or constructively; on the contrary, the terms of the deposit exclude the idea of a delivery. Alsop v. Swathel, 7 Conn. Rep. 500.” Cowen & Hill’s Notes to 1 Phil. Ev. 1281, 1282, 1284;

(a) Graham on New Trials, 368.