or recitals are made in an instrument to which is affixed something capable of being a seal if intended as such, that it is sealed, such statements are doubtless evidence and perhaps conclusive evidence of the obligor's intent.36

The final requisite for the validity of a deed is delivery. Until delivery it is ineffectual though signed, sealed, and assented to by the parties as an expression of the bargain between them; and when once delivered it is binding though redelivered for safe keeping." It matters not when the instrument is dated; it becomes effectual when delivered, 38 though

40

the execution is presumed in the absence of evidence to the contrary to have taken place on the day on which the deed is dated.39 It should be observed, however, that though no obligation arises until delivery, the terms of the instrument may be such that it then binds the obligor for occurrences prior to delivery, for example from the date of the instrument; and it is also possible to have a preliminary simple contract to execute in the future a formal contract. The primary idea of delivery was concerned with the surrender of possession of the instrument as a fact, rather than with any intent on the part of the obligor to make the deed immediately operative; 42 but at a comparatively early day it was recognized as a necessity that the obligor should surrender possession voluntarily; 43 and thereby the obligor's real or apparent attitude of mind became a factor in the problem, though the

Grunsden, 2 Salk. 462; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Lee v. Mass. Ins. Co., 6 Mass. 208, 219; Banning v. Edes, 6 Minn. 402; Jackson v. Schoonmaker, 2 Johns. 230; Geiss v. Odenheimer, 4 Yeates, 278, 2 Am. Dec. 407; Swan v. Hodges, 3 Head, 251; McMichæl v. Carlyle, 53 Wis. 504, 10 N. W. 556.

39 Oshey v. Hicks, Cro. Jac. 263; Savery v. Browing, 18 Ia. 246; Lyon v. McIlvaine, 24 Ia. 9; M'Connell v. Brown, Litt. Sel. Cas. 459; Banning v. Edes, 6 Minn. 402; Colquhoun v. Atkinsons, 6 Munf. 550; Raines v. Walker, 77 Va. 92; Wheeler v. Single, 62 Wis. 380, 22 N. W. 569. See also Anderson v. Weston, 6 Bing. N. C. 296.

40 In Aetna Life Ins. Co. v. American Surety Co., 34 Fed. 291, 300, speaking of a surety's obligation, the court said: "It was not delivered or accepted until July 29th, but when accepted it took effect in accordance with its express terms, and if, by its terms, it commenced on June 15th, and was to continue for 12 months thereafter, the bond, if delivered and if accepted during the 12 months, related back to June 15th. Dawes v. Edes, 13 Mass. 177;

Hatch v. Attleborough, 97 Mass. 533." See also Rose v. Mutual L. Ins. Co., 240 Ill. 45, 88 N. E. 204.

41 Langdell, Summ. Cont., § 119. Not uncommonly a contract to issue a policy of insurance is made in this way. See, e. g., Tayloe v. Merchants F. Ins. Co., 9 How. 390, 13 L. Ed. 187; Union Central L. Ins. Co. v. Phillips, 102 Fed. 19, 41 C. C. A. 263; Devine v. Federal L. Ins. Co., 250 Ill. 203, 95 N. E. 174; New York L. Ins. Co. v. McIntosh (Miss.), 41 So. 381.

42 This is shown by the authorities referred to supra, § 205, that a man might be bound by a deed sealed with his seal even though attached by another without authority.

43 Perkins's Profitable Book, § 137. "And although a deed be sufficiently written in my name, and sealed by me, but is not delivered by me, or another by my assent, or agreement or commandment, the same shall not bind me; for all this time it is but an escrowl. And if I make such an escrowl, and let it lie by me, and a stranger gets it, it shall not bind me, for it is not yet my deed."

46

intent of the obligee or grantee was not equally important, since delivery for his use made to a third person who had not at the time been appointed by the obligee or grantee as his agent, sufficed.44 Intent to deliver is unquestionably now essential; 45 but the rule which still persists that a deed can not be delivered as an escrow to the obligee or grantee is evidence of an early doctrine that so long as there was a voluntary surrender of possession to the obligee or to some one acting as agent not for the obligor but for the obligee, the intent with which the surrender was made was immaterial, and that even though an intent was expressed and assented to, that the obligor should not be bound, he nevertheless would be so bound.

A deed may be unilateral or bilateral in its operation. In the former case it need be executed only by the obligor and is customarily called a deed poll. If the obligations are bilateral it would normally be executed by both parties and is called an indenture.47 Though one part only of an indenture is executed, the deed will nevertheless be binding if that part is delivered; but if there was no intent to deliver any part

44 Butler & Baker's Case, 3 Co. 25a, 26 b; Renehan v. McAvoy, 116 Md. 356, 81 Atl. 586; Roepke v. Nutzmann, 95 Neb. 589, 146 N. W. 939; Buchanan v. Clark, 164 N. C. 56, 80 S. E. 424, and see infra, § 212. It is immaterial that the grantor is dead when the deed is delivered by the third person to the grantee. Schooler v. Schooler, 258 Mo. 83, 167 S. W. 444 infra n. 58.

45 Cobban v. Cobban, 208 Fed. 231, 125 C. C. A. 431; Piercy v. Piercy, 18 Cal. App. 751, 124 Pac. 561; Elliott v. Merchants' Bank, 21 Cal. App. 536, 132 Pac. 280; Miles v. Robertson, 258 Mo. 717, 167 S. W. 1000; Thrush v. Thrush, 63 Or. 143, 126 Pac. 994; and see cases in the following section.

46 See infra, § 212.

47 In 2 Blackstone Comm. 295, it is said: "If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are

parties, and each should be cut or indented (formerly in acute angles instar dentium (like teeth), like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which so deed so made, is called an indenture."

"When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts; though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed." See infra, § 214, at the obligation of one who accepts a deed nou executed by a grantor or oblig or.

until all the parts were executed, there is no obligation until this condition is fulfilled. 48

§ 211. How far intent to deliver must be accompanied with actual delivery.

The English law has gone in modern times to an extreme directly opposite to that of the early law. In the early law the vital matter was actual surrender of possession irrespective of intent. In the modern English law intent seems sufficient without surrender of possession, and without any agreement between the parties that the obligor shall hold possession as bailee for the obligee. The House of Lords has held that a policy of insurance was delivered and therefore operative, though still in the possession of the insurance company, on the ground that the evidence showed an intention on the part of the company to execute the policy as an immediately binding obligation. 49 Though generally the cases in the United States do not seem to have gone quite to the extreme of the English decisions, some cases at least seem to have accepted without question the English statement that the only thing essential to delivery is some manifestation by word or act on the part of the obligor that the instrument is to be immediately binding; 50 but other authorities require

.

48 In Diebold Safe & Lock Co. v. Morse, 226 Mass. 342, 115 N. E. 431, 432., the court said: "It is unnecessary to consider .. the cases cited in the plaintiff's brief deciding that if one party executes its part of the indenture it shall be his deed, though the other party does not execute his part. These cases are to be distinguished from the case at bar, for the reason that it was here found as a fact that the contract was not binding until all parties had exchanged, executed and delivered both the indentures. The delivery of an instrument in writing does not make it operative, if delivered on a condition not fulfilled."

49 Xenos v. Wickman, L. R. 2 H. L. 296, followed in Roberts v. Security Co., [1897] 1 Q. B. 111. One may guess

that study of the civil law was responsible for the substitution of the subjective test of that law for the objective standard of the common law.

50 See for instance Stephens v. Stephens, 108 Ark. 53, 156 S. W. 837; Moore v. Trott, 162 Cal. 268, 122 Pac. 462; New York Life Ins. Co. v. Babcock, 104 Ga. 67, 30 S. E. 273, 42 L. R. A. 88, 69 Am. St. Rep. 134; Rodemeir v. Brown, 169 Ill. 347, 48 N. E. 468, 61 Am. St. Rep. 176; Rose v. Mutual L. Ins. Co., 240 Ill. 45, 88 N. E. 204; Hoyt v. Northup, 256 Ill. 604, 100 N. E. 164; Thurston v. Tubbs, 257 Ill. 465, 100 N. E. 947; Hathaway v. Cook, 258 Ill. 92, 101 N. E. 227; Little v. Eaton, 267 Ill. 623, 108 N. E. 727; Johnson v. Gerald, 169 Mass. 500, 48 . E. 764; Mitchell v. Ryan, 3

not only an appropriate intent but an actual relinquishment by the grantor of the custody or control of the instrument.51 Most of the cases on this subject relate to conveyances of real estate, or to polices of insurance. The question of delivery, however, seems identical whatever the character of the deed or covenant.52

The manual surrender of a sealed instrument to a third person does not necessarily create an immediate obligation. The instrument may be delivered in escrow.53 Acquisition by the grantee of the escrow before the performance of the condition upon which it was to be delivered, will not make the instrument binding, whether the fault was due to the person in whose hands the deed was put as an escrow or to the fraud of the grantee.54 It was the rule of the common law that though delivery could thus be made to a third person