
    Williams v. Schatz.
    A., having executed in due íovm a deed of gift of real estate to his son, said to B.: “ Take this deed and keep it. If I get well I will call for it. If I don’t, give it to Billy,” the grantee. A. was then ill and died within a few days thereafter of the same illness, and B. then handed the deed to the grantee, who caused it to he recorded. Held, that this did not constitute a delivery, and the instrument was invalid as a deed. Crooks v. Crooks, 34 Ohio St. 610, and Ball v. Foreman, 37 Ohio St. 132, approved but d'stinguished.
    ERROR to the District Court of Franklin county.
    W. F. Schatz and Lydia his wife, in 1878, filed a petition in the court of common pleas of Franklin county, against William Williams and Mary Williams. Lydia Schatz and William Williams are the only children of William Williams, sen., deceased, and Mary Williams is his widow. It is stated in the petition that William Williams, sen., died seized of 188 acres of land in Franklin county (properly described); that it descended to Lydia Schatz and William Williams; that on March 7, 1877, William Williams, sen., executed an instrument purporting to be a deed for the land aforesaid to his son William, “ in consideration, of the sum of one dollar and love and affection,” and placed the same in the hands of Dr. Blake ; that the deed .was never delivered, and is void; and that subsequently to the death of William Williams, sen., William Williams placed the pretended deed on record. The prayer is for cancellation of the deed and record; that William Williams be compelled to convey to the plaintiff Lydia one undivided half of the lands; and that partition of the lands be made between William and Lydia, and dower be assigned to Mary Williams.
    Issue was joined, and on trial in the district court, to which the cause had been appealed, the finding and judgment were in accordance with the petition. This petition in error is filed to reverse the judgment of the district court.
    From the record it appears that the undisputed evidence M'as that on March 7, 1877, William Williams, sen., having signed and acknowledged in proper form such deed, which deed had also been properly attested by witnesses, said to Dr. Blake : “ Take this deed and keep it. If I get well I will call for if. If I don’t, give it to Billy,” the grantee. The grantor was then seriously ill of typhoid pneumonia, grew gradually worse, and died of that disease on March 12, 1877. Subsequently Dr. Blake delivered the deed to William Williams, who caused the same to be recorded in the office of the recorder in Franklin county, and the grantee in the deed has been in possession ever since he received the deed from Dr. Blake.
    
      G. H. Nash and Q. N. Olds, for plaintiff in error :
    There was a sufficient delivery. Wheelwright v. Wheel-wight, 2 Mass. 446 ; Foster v. Mansfield, 3 Met. Mass. 412 ; Hatch v. Hatch, 9 Mass. 307; Belden v. Garter, 4 Day, 6G; Morse v. Slason, 13 Yt. 296 ; 14 Yt. 185 ; Buggies v. Lemson, 13 Johns. 285; Arthbechc v. Willcs, 4 Abb. Pr. 315; Hathaway v. Payne, 34 N. Y. 92; Tooley v. Dibble, 2 I-Iill, 641; Goodell v. Pierce, 2 Hill, 659 ; 103 Mass. 568 ; 2 Pa. St. 434; 77 Ill. 475 ; Wallace v. Harris, 32 Mich. 380 ; 19 Mich. 157; Croolcs v. Crooles, 34 Ohio St. 610; Merrill v. Swift, 18 Conn. 257 ; Church v. Gilman, 15 Wend. 656 ; 2 Green. Cruise’s R. P. 335, note; Shirley v. Ayres, 14 Oliio, 310; 4 Kent’s Com. 447, 454; 6 Coke Litt. 360 ; Sbep. Touch. 55; Steele Lowry, 4 Ohio, 74; Bunn v. Winthrop, 1 Johns. Oh. 329; Sonverbye v. Arden, 1 Johns. Ch. 240; Schuygham v. Wood, 15 Wend. 545 ; Goodrich v. Walker, 1 Johns. Ch. 250; 1 Am. Ch. Dig. 241; Byers v. McClanahan, 6 Gill. & J. 250; Gardner v. Collims, 3 Mason, 398; 1 Green. Ev. § 658, note 6; 2 Id. § 297; 1 Swift’s Dig. 122; Hilliafdis Abr. 294; Phillip’s Ev. 467, notes bj C. & H. pt. 2, 1281 ; Chitty’s Con. 4 ; Lloyd v. Bennet, 8 C. & P. 124 ; 5 P. & C. 671; 8 D. & Ry. 348; Farrar v. Bridges, 5 Humph. 44; 8 Met. 436; 2 Hill, 64; Buhes v. Spangler, 35 Ohio St. 119 ; Ball v. Foreman, 37 Ohio St. 132.
    
      L. English and J. W. Baldwin, for defendants in error:
    There was no effectual delivery; and no case for relief is shown. Phiyyps v. Hope, 16 Ohio St. 586 ; Brown v. Brown, 62 Me. 315 ; Shirley v. Ayres, 14 Ohio, 310; Prutsman v. Baker, 30 Wis. 644; s. c., 11 Am. Rep. 502; Cook v. Bown, 34 N. II. 466 ; Bearmond v. Bearmond, 10 Ind. 191; Walker’s Am. L. 368 ; Addison’s Con. 7; Kent’s Com. 544 ; 30 Cal. 209 ; Phillips v. Houston, 3 Jones’ L. 302 ; Banlc v. Webster, 44 N. II. 264; Johnson v. F'arley, 45 N. H. 505 ; Balter v. Haskell, 47 N. H. 479; James v. Wander-heyden, 1 Paige, 385 ; Stimson v. Anderson, 96 Ill. 373 ; Elmore v. Meeks, 39 Yt.. 538; 3 Wash. R. P. 282; 17 Iowa, 486; 41 N. Y. 421; 3 Wall. 641; 2 Par. Con. 494; Mitchell v. Ryan, 3 Ohio St. 377; Crooks v. Oroolts, 34 Ohio St'. 610; Ball v. Foreman, 37 Ohio St. 132; Huey v. Jluey, 65 Mo. 694; Parker v. Parker, 1 Gray, 409 ; Merriam v. Leonard, 6 Cush. 151; Comer v. Baldwin, 16 Minn. 172; Pry Spec. Per. § 64; Waterman Spec. Per. § 186.
    See also the following additional cases on the subject which were examined while the case was under consideration : Hobart’s R. (Am. ed.) 246, note ; Patterson v. Snell, 67 Mo. 559 ; Stewart v. Weed, 11 Ind. 92, approved, Squires v. Summers, 85 Ind. 252; 47 Ind. 418; Brown v. Brown, 1 Wood. & M. 325; Siilwell v. Hubbard, 20 Wend. 44; Stephens v. Buss, 
      54 Pa. St. 20 ; Stephens v. Rinehart, 72 Pa. St. 434 ; 5 Conn. 320; 6 Id. 113 ; 7 Id. 503 ; 18 Id. 262; 22 Id. 46123 Pick. 233; Stanton v. Miller, 58 N. Y. 192 ; Newton v. Bealer, 41 Iowa, 334; Campbell v. Thomas, 42 Wis. 437; Latham'v. Udell, 38 Mich. 238; 7 Grant’s Oh. (U. C.) 23; Byars v. Spencer, 101 Ill. 429; Blade v. Hoyt, 33 Ohio St. 203.
   Okey, J.

An instrument may be in the form of a deed ; it may be properly signed,'sealed, witnessed, acknowledged and recorded ; the grantor may have capacity to convey, and the grantee to receive and hold the title; the transaction may be free-from fraud or mistake; nevertheless, the instrument will not take effect as a deed unless' it is delivered. But no particular form or ceremony is essential to constitute delivery ; it need not be manual; it may be made by words and acts, or either, if accompanied with intention that they shall have that effect; it may be made by the grantor personally, or through his agent, to the grantee, either personally or through his agent; and it may be made in escrow, or to take effect immediately.

The direction to Dr. Blake, given by the grantor, then sick of typhoid pneumonia, was that if he died, the doctor should deliver the deed of gift to the grantee; but if he, the grantor, recovered, he.would call for it. lie died, and Dr. Blake delivered the deed to the grantee. But this was not a valid delivery, and hence the instrument never took effect as a deed. The transaction was in the nature of a testamentary disposition of property; but the instrument, not having been executed as, or with the formalities of a will, its probate would doubtless have been resisted ■ (though see Habergham v. Vincent, 2 Ves. jr. 204; 1 Jar. Wills [by R. & T.], 33 et seq.); and, however that may be, a will in Ohio is of no force until admitted to probate, and probate of this instrument is barred (2 Swan & Or. 1621, § 32 ; Eev. Stats. § 5943.) And the instrument is equally invalid as a deed. Dr. Blake was the agent of the grantor and not of the grantee, and hence the instrument was not-only revocable by the grantor at any time before his death, but not having parted with all dominion over it during life, it became, on bis death, a mere nullity. Wellborn v. Weaver, 17 Ga. 267; Carey v. Dennis, 13 Md. 1; Hale v. Joslin, 134 Mass. 310; and see Phipps v. Hope, 16 Ohio St. 586; 1 Jar. Wills (by R. & T.), 33 et seq.

In Crooks v. Crooks, 34 Ohio St. 610, it appeared that- the grantor, without reserving or intending to reserve any control over the instrument, delivered it to a third person, to be by him delivered to the grantee at the death of the grantor,” and ‘ ‘ the depositary accepted the deed for the grantee, and at the death of the grantor, delivered it to the grantee.” This was held to constitute a delivery. That was upon the theory that the grantor had delivered the instrument as his deed, and that it took effect as of the date of the first delivery. The decision received the unanimous approval of this court in Ball v. Foreman, 37 Ohio St. 132. "While this may be regarded as an exception to the rule as to deeds of this character, we regard the law as settled for this state as to any case fairly coming within these decisions. But neither of the cases was like this, and properly understood they are decisive against the validity of this deed. They were cases in which the grantors had parted absolutely with all dominion over the instruments, and there was no revocation or attempt to revoke. Here it was in terms stated by the grantor, that if he recovered, he would call for the deed. As a deed of gift such an instrument was, therefore, a mere nullity, and required no revocation.

■ Finding no error, the proper order to be entered is —

. Judgment affirmed.  