
    CORDIAL STORRS, TRUSTEE, vs. ALEXANDER SHARP.
    At Law. —
    No. 12681.
    A chattel-mortgage was made to a trustee for the benefit of a third party, and the marshal afterward seized a portion of the property upon an execution against the grantor. The trustee then brought replevin, and on the trial there was a conflict of testimony as to the delivery of the deed to the trustee, no question being made but that it was duly recorded. The court instructed the jury that there was no delivery unless the deed was placed in possession of the trustee or another person for him at his request, or unless it was left at the recorder’s office, subjectto hisorderand with his knowledge and consent; and that the delivery of the. deed to the register without the knowledge of the grantee is not sufficient. This instruction was held to be erroneous.
    STATEMENT OP THE CASE.
    This was an action of replevin brought by the plaintiff as trustee in a chattel-mortgage to recover articles of household furniture embraced in said mortgage, and which had been seized by the defendant, as United States marshal, upon an execution against one Olive M. Hetchman, the person who • had executed the said deed of mortgage. The defendant put in a plea that the goods and chattels sought to be replevied did not nor did any of them belong to the plaintiff.
    On the trial of the cause in the court below, the plaintiff gave in evidence a chattel-mortgage, filed with the papers in the case. The execution of the said chattel-mortgage was admitted by the defendant to have been made by Olive M. Hetchman, and that at the time of the execution of said deed the said Olive M. Hetchman was the owner of the goods and chattels named in said deed of trust. The plaintiff gave further evidence to the jury tending to prove that all the goods and chattels replevied in this action were part of the goods'and chattels named in said chattel-mortgage, and the plaintiff offered evidence tending to show that the said deed of trust was delivered before any execution was levied on said goods; and the defendant offered evidence tending to show that no delivery of the said deed of trust was made till after the levying of th e execution under which the defendant held the said goods when they were replevied.
    The counsel for the defendant asked the chief-justice, holding the court, to instruct the jury as follows:
    “ If the jury are satisfied by the evidence that the deed of trust from Olive M. Hetchman to the plaintiff, Storrs, was not in fact at any time placed in his possession by him or given to another person for him at his request, or left at the recorder’s office subject to his order and with his knowledge and consent, there was no delivery, and they must find for the defendant.”
    “ The delivery of a deed to the register to be recorded without the knowledge of the grantee is not sufficient.”
    The court instructed the jury as above, whereupon the couusel for the plaintiff made his exception.
    The jury rendered a verdict for the defendant, on which judgment has been entered.
    
      O. D. Barrett for plaintiff:
    The object of the statute under which the plaintiff claims to hold the goods in question was to provide a way by which it could be easily ascertained whether any sales had been made of prox>erty that still remained in the possession of the vendors. Of this fact we are not left to inference, for the object is fully set forth in the act itself. Md. Stats., 1729, chap. 8, sec. 5. In the case in question, the object of the statute was fully attained by the recording of the deed of trust. That object having thus been attained, it would simply be oppression to make use of the statute, by technical objections to the deed of trust, to despoil the beneficiary therein of his rights.
    The chief-justice, before .whom the case was tried in the court below, erred in not discriminating between a deed of trust, wherein the grantee acquired no interest but a naked title, and a deed in fee, where the grantee is vested both with the title and the beneficiary interest. Before the court can come to the conclusion that the charge in question is sound law, it must decide that a deed of trust, wherein the trustee has no beneficial interest, is not valid, even though the trustee has consented to act as such, and the deed of trust been executed, acknowledged, and delivered to the beneficiary, and by him placed on record.
    And further, to sustain this charge, the court must decide that such execution and delivery of the deed of trust, and the recording of the same, would not be valid although the grantor in the deed had requested the beneficiary to accept the deed, to record it, and to deliver it to the trustee.
    And further, to sustain the charge of the chief-justice, the court must decide that no trust can be created until a trustee shall have been named in the trust, and he shall have accepted the same, which would limit the well-known power of the court to provide a trustee for every trust where necessary, to the filling of any vacancy which might have occurred by the death or resignation of a trustee, who had formally accepted the same.
    The evidence in this case tends to prove that a son of the beneficiary called on the plaintiff with the deed of trust prepared, and obtained the assent of the plaintiff, and the use of his name as trustee therein.
    
      Birney & Birney for defendant:
    The exception is not well taken.
    Delivery is essential to the validity of a deed. Oliver vs. Stone, 21 Ga., 63; Ferguson vs. Miles, 9 Ill., 358; U. S. Dig., vol. 4, title Deeds II, p. 480, sec. 283, and cases there cited.
    To constitute a valid delivery of a deed, it must pass into the hands of the grantee, or some one for him, in such way as to be beyond the legal control of the grantor. Johnson vs. Farley, 45 N. H., 505; Blade vs. Shreve, 13 N. J. Eq., 455; Dearmond vs. Dearmond, 10 Ind., 191; Wiggins vs. Lusk, 12 Ill., 132; Bailey vs. Bailey, 7 Jones, N. C. L., 44; Woodbury vs. Fisher, 20 Ind., 387; Stillwell vs. Hubbard, 20 Wend., 44; Younge vs. Guilbeau, 3 Wall., 636.
    A mortgage, like any other deed, to be. valid and operative, must not only be signed and sealed, but it must be delivered. Freeman vs. Peay, 23 Ark., 439; Foster vs. Beardsley, 47 Barb., 505; Hood vs. Brown, 2 Ohio, 266.
    The act of registering a deed does not amount to a delivery of it, there not appearing an assent on the part of the grantee or any knowledge that the deed had been executed in his favor. Wiggins vs. Lusk, 12 Ill., 132; Maynard vs. Maynard, 10 Mass., 456; Harrison vs. Phillips Acad., 12 Mass., 456; Jackson vs. Phipps, 12 Johns., 413; Elsey vs. Metcalf, 1 Denio, 323; Hayes vs. Davis, 18 N. H., 600; Darr vs. Hoxie, 5 Mass., 60; Baker vs. Haskell, 47 N. H., 479; Derry Bank vs. Webster, 44 id., 264; Parmelee vs. Simpson, 5 Wall., 81.
    A creditor attaching after deed from his debtor is on record can hold on proving that the grantee had not accepted the deed. Denton vs. Perry, 5 Vt., 382; Johnson vs. Parley, 45 N. H., 505; Derry Bank vs. Webster, 44 N. H., 264; Hood vs. Brown, 2 Ohio, 267.
    What amounts to a final delivery and acceptance of a deed is a question of law ; but whether the facts exist which constitute such delivery and acceptance is a question of fact for the jury. It is therefore a mixed question of law and fact, and must be left to the jury under the direction of the court. Earle vs. Earle, 20 N. J. L., 347; Lindsay vs. Lindsay, 11 Vt., 621; Dearmond vs. Dearmond, 10 Ind., 191; Barry vs Hoffman, 6 Md., 28.
   Mr. Justice Humphreys

delivered the opinion of the court:

Plaintiff, as trustee in a chattel-mortgage deed, brought replevin against defendant, the marshal of this District, who had levied an execution upon furniture included and described in the deed. The record discloses that the execution of the chattel-mortgage was admitted; that, at the time of its execution, Olive M. Hefcchman, the person who made the deed, was the owner of the goods and chattels mentioned therein, being parts of the same levied upon.

The testimony was conflicting as to the fact whether the deed was delivered before the writ of execution was levied on the property. The defendant makes no question as to the proper record of the mortgage, and it is not here as a question in the case. The instruction given to the jury, to which exception by plaintiff was taken, at request of plaintiff, was this:

“If the jury are satisfied by the evidence that the deed of trust from Olive M. Hetchman to the plaintiff, Storrs, was not in fact at any time placed in his possession by her, or given to another person for him. at his request, or left at the recorder’s office subject to his order and with his knowledge and consent, there was no delivery, and they must find for the defendant. The delivery of a deed to the register, to be recorded without the knowledge of the grantee, is not sufficient.”

This was the only charge given, as shown by the transcript of the record. This was error all through and all over. The cases of Adams vs. Adams, 21 Wall., 185, and those cited in the opinion, settle the error in the prayer and charge.

It is urged by counsel for defense that the bill of exceptions does not show that there was no other evidence upon which the verdict may have been based. Even if there had been other testimony, if we find a clearly erroneous prayer asked and given by the court, we cannot tell upon what the jury found their verdict. Plaintiff was wronged in law by the charge of the prayer, and the law presumes an injury. It often occurs in practice that parties ask too much of a court in insisting upon prayers immaterial to their cause, but •which, if given in the hurry of the trial of causes at nisi prius, will be erroneous.

Here we have before us a clearly erroneous charge, given, as the record discloses, at the request of counsel for the defendant. We can conceive of nothing that would cure the error of this prayer and charge. Even if all the testimony was set out, and there was any conflict, we could not wrest the cause from the jury. The charge prayed for was of itself sufficient to base a verdict for defendant upon, and that being full of error, we are forced to the conclusion that the jury found their verdict upon that instruction. Facts are to be found by a jury. If they had found all facts for the plaintiff except those involved in the prayer and charge, and had found these against him, their verdict must necessarily have been for defendant. We are therefore forced to conclude an an injury to plaintiff.

In the case of Adams vs. Adams, 21 Wall., before referred to, the court, Mr. Justice Hunt delivering the opinion, say : "We are of opinion that the refusal of Appleton, in 1870, to accept the deed, or to act as trustee, is not a controlling ■circumstance.”

In the case before us the court was asked to change the negative and to assert the law to be that plaintiff must prove, affirmatively, that the deed was placed in his hands by Mrs. Hetchman. He was in court asserting his title, as trustee, to the property. Why the instruction was asked or given we cannot conceive from anything that is shown in the record. In the case of Adams, the trustee named in the deed refused to accept, and the court of equity appointed a trustee. In this case before us, the trustee comes into court, and by his suit precludes the inquiry into the question of even delivery, so far as he is concerned, by bringing the suit. No question is made by the alleged grantor. The grantee of the legal title asserts his acceptance of the trust by coming into court and suing for the property. Counsel are often persistent in offering prayers and asking instructions to a jury, which, if granted, will be error, and reverse a judgment founded upon a verdict on such instructions. A court is not responsible for such error in the rapidity with which trials take place before juries. Parties are presumed, through counsel, to watch their own interests and their cause, and when they ask more than they are entitled to the judge often reverses himself. When a jury is impaneled, they take an oath to ascertain the facts and to take the law from the court. This is seldom violated on the part of the jury. Eesponsibility must go báck to the source of it. Counsel, learned in the law, are often employed by parties to conduct their cause according to the well-established rules of law, rules which will stand the test of many tribunals, and they must not, in haste, urge upon a court any proposition which is not sound enough to stand litigation and the sharp legal criticisms of an active antagonist. No party is willing to surrender a contest till he has had all the rules of law applied fairly to his case.

This judgment must be reversed, and a reversal is hereby ordered.  