
    Irene Egan by Frank A. Morey, Pro Ami, vs. Elizabeth G. Horrigan, and others.
    Androscoggin.
    Opinion December 17, 1901.
    
      Deeds. Evidence. Deliver!). Infant, li. iS., c. S3, % JJO.
    
    Kevised Statutes c. 82, ¿ 110, provides tlmt “when original deeds would be admissible, attested copies of such deeds from the registry may be used in evidence without proof of their execution, when the party offering such • copy is not a grantee in the deed, nor claims as heir, etc. Held; that this statute is inapplicable in oases where the plaintiff claims as heir of the grantee; nor is an office copy offered by an heir of the grantee admissible, under this statute, without proof of the execution of the deed; nor is it admissible as secondary evidence without proof that all apparent means to procure the original have been exhausted.
    There is no sufficient warrant in reason or precedent for declaring as a rule of law, or presumption of fact, that the record of a deed is, under ail circumstances, prima facie evidence of a delivery.
    The plaintiff sought in a ''real action to recover the entire property described in the writ. The defendants claimed seven-ninths of the premises, deraigning title from the same ancestor, and disclaimed the other two-ninths.
    The case was submitted to the law court upon a report of all the testimony to render such judgment as the law and evidence require.
    The court adduce the following finding- of facts: — Ann Haley, the plaintiff’s grandmother, who was seized of the property, on August 9, 1886, signed and acknowledged a warranty deed of the premises to her daughter, Annie Haley, an infant twelve years of age, who afterwards married one Egan and became the plaintiff’s mother.
    This deed appears to have been prepared in the office of an attorney at Lewiston and was recorded on the day of its date. Patrick Haley, the husband of the grantor was not\present in the attorney’s office at that time, but signed the deed elsewhere before it was recorded, at some latex-hour in the day.
    At the same time, and as part of the. same transaction, Annie Haley, the infant grantee, gave back to her mother a deed of the same premises, but it was not recorded until February 3, 1887. The daughter, Annie Haley ligan, died about six months before the death of the mother.
    
      The plaintiff claimed that the deed from Annie Haley to her mother, Ann Haley, executed while she was a minor, was absolutely void, or if not void that it was voidable, not ratified after she became of age; and that by virtue of the deed from her mother, with a release of dower by her father, she acquired a valid title to the whole property which descended to the plaintiff at the decease of her mother, Annie Haley Egan.
    On the other hand, the defendants claimed that the deed from Ann Haley to her daughter was never delivered to the child so as to take effect as a conveyance of title. After a careful consideration of all the evidence reported and full consideration of the situation and the circumstances of the parties, more fully detailed in the opinion of the court, it is considered by the court that there is not only no affirmative testimony of an actual delivery of the deed from the mother to her daughter, or to any agent or attorney of the daughter, but no competent evidence from which any presumption of delivery arises.
    It is admitted that the attorney who witnessed and took the acknowledgment of the mother and daughter, the grantors in the two deeds, respectively, has no knowledge of their delivery. The original deed from Ann Haley to her daughter, under which the plaintiff claims, was not produced in court, and there is no evidence that it was ever in the possession of either the plaintiff or her mother; while, on the other hand, it does appear that this deed was in the possession of the administrator of the grantor, Ann Haley, and was delivered by him to the defendant Callahan, who it is not shown was notified to produce it in court.
    
      Held; in this case, that there is no contradictory testimony and nothing in the situation and circumstances of the parties having any necessary tendency to repel the presumption that the. deed in question, shown to have been in the possession of the grantor’s representative, had not been delivered to the grantee.
    On report.
    Judgment for plaintiff for two-ninths of demanded premises.
    Real action against Elizabeth C. Horrigan, Catherine Dugan and Dennis .1. Callahan, heirs of Ann Haley, to recover all of certain premises in the city of Lewiston.
    The case is stated in the opinion.
    
      I). J. Me,Gillie,uddy and F. A. Morey, for plaintiff'.
    
      W. II. Judkins, lor defendant Horrigan.
    
      W. II. Newell and JL II. Hkellon, for defendants .Dugan and Callahan.
    
      Sitting: Wisavell, C. J., Emeky, Wiiitehouse, Strout, Saacage, Powers, JJ.
   Whitehouse, J.

This is a writ of entry in which the plaintiff seeks to recover possession of the real estate described in the Avrit, claiming title to the entire property. The defendants Horrigan and Dugan claim each an imdivided two-ninths part, and the defendant Callahan, an undivided three-ninths of the property, and all the defendants disclaim the residue. It is accordingly admitted by the pleadings that the plaintiff is in any event entitled to judgment for two-ninths of the premises described in her Avrit.

It is not in controversy that August 9, 1886, Ann Haley, the plaintiff's grandmother, Avas kiwfully seized of the property in question, and signed and ackowledged a' deed of Avarranty of the premises to her daughter, Annie Haley, an infant twelve years of age, Avho afterwards married Egan and became the mother of this plaintiff. This deed appears to have been prepared in the office of Judge Cornish of LeAviston, and Avas recorded in the registry of deeds on the day of its date. Patrick Haley, the husband of the grantor, was not present in the office at that time, but affixed his signature to the deed elsewhere before it aatas recorded, at some later hour in the clay. At the same time, and as a part of the same transaction, Annie Haley, the infant grantee, executed a deed of the same premises back to her mother, but the deed was not recorded until February 3, 1887. Ann Haley died April 6, 1897. The daughter, Annie Haley Egan, died about six months before the death of her mother.

It is claimed on behalf of the plaintiff that the deed from Annie Haley to her mother,. executed Avhile she Avas a minor, Avas absolutely void, or if not, that it was a voidable deed, not ratified after she became of age, and that by virtue of the deed from her mother, AA'ith a release of doAver from her father, she acquired a valid title to the Avhole property which descended to the plaintiff at the decease of her mother.

On the other hand, it is contended in behalf of the defendants that this deed from Ann Haley to her daughter Avas never delivered to the child so as to take effect as a conveyance of title, and hence that it is unnecessary to consider the effect of the deed from Annie Haley back to her mother.

After a careful examination of all the evidence reported and full consideration of the situation and the circumstances of the parties, it is the opinion of the court that the defendants’ contention must be sustained. There is not only no affirmative testimony that the deed was ever actually delivered to the grantee, or to any agent or attorney of the grantee, but no competent evidence from which any presumption of delivery arises, it appears that Judge Cornish witnessed the signatures and took the acknowledgments of Ann Haley and the daughter Annie Haley, the grantors in the two deeds, respectively, but it is admitted that he has no knowledge whether either of the deeds was delivered or not. The original deed from Ann Haley to her daughter, under which the plaintiff claims, was not produced in court, and there is no evidence that it was ever in the possession of either the. plaintiff or her mother. On the other hand it does appear in testimony that this deed was in the possession of the administrator of the grantor, Ann Haley, and was by him delivered to the defendant Callahan. . It is not shown, however, that Callahan was ever notified to produce the deed in court, and without assigning any reason for the absence of the original, the plaintiff’s counsel introduced in evidence, subject to objection, an attested copy of it from the registry of deeds. He now contends that this office copy is prima facie evidence of the delivery as well as of the execution of the deed.

Section lit) of chapter 82, It. S., provides that “when original deeds would be. admissible, attested copies of such deeds from the registry may be used in evidence without proof of their execution, when the party offering such copy is not a grantee in the deed nor claims as heir,” etc. And in Whitmore v. Learned, 70 Maine, 276, it was held that the production of an office1 copy of a deed in such a case, in the absence of any circumstances tending to remove the presumption arising therefrom, is prima facie1 evidence not only of the exception, but also of the delivery of the elee'd. But it has been seen that the plaintiff in this case eloes e-hum as heir of the grantee in the eleeel under consideration. The statute is, therefore, clearly inapplicable to the plaintiff’s case. It ('xpressly exedndes from its operation the deed to a party who is himself the grantee or who claims as heir. The office copy offered by the plaintiff in this ease was not admissible under the statute without proof of the execution of the deed. Neither was it admissible as secondary evidence without proof that all apparent means to procure the original had been exhausted.

Nor does the fact that the deed was recorded have any necessary tendency, under the circumstances of this case, to prove that it had been delivered. In Rowell v. Hayden, 40 Maine, 582, the defendant pleaded in bar of a Avrit of entry, that after the. commencement of the action the demandant had conveyed the preanises to a third party “by his' deed duly executed, acknoAvledged and recorded . . . . Avhereby the demandant Avas Avholly devested of all right, title and interest in and to the premises;” and in considering the sufficiency of this plea, on demurrer, the court say: “The pleas arc not defective. The fact that a deed is recorded is prima facie evidence that it has been delivered.” But this general statement Avas not necessary to the decision of the question there presented; for it is an established ride of pleading that- “the delivery of a deed, though essential to its validity, need not be stated in pleading.” 1 Chitty’s Pl. (16 Ed.) 378. So in Jackson v. Perkins, 2 Wend. 317, the court say, Avith. reference to the facts of that case: “Proof of the due execution of a deed, and of its having been recorded, is perhaps prima facie evidence of its delivery; but it Avould be sub-' versive of all principle to hold the nominal grantee concluded by these acts, all of Avliich may be performed by the grantor, Avithout the knoAvledge, privity or consent of the grantee. It is true, that in pleadings it is not necessary to aver in terms either the sealing or the delivery of a deed; they are both implied in the term deed or A\niting obligatory. But this is merely a rule of pleading, and does not determine the question as to AAdiat shall be evidence of the sealing or delivery upon the trial.” See also Scrugham v. Wood, 15 Wend. 545, 30 Am. Dec. 75; and Gilbert v. No. Am. Fire Ins. Co., 23 Wend. 43, 35 Am. Dec. 543.

It is unnecessary to controvert the proposition, hoAvever, that the record of a deed may be an evidential fact having more or less tendency, according to circumstances, to shoAV that the deed had been delivered to the grantee therein named or to some person for his use. It may, under some circumstances, be prima facie evidence of delivery. But there is no sufficient warrant in reason or precedent for declaring as a rule of law or presumption of fact, that the record of a deed.is, under all circumstances, prima facie evidence of a delivery. On the other hand, experience has shown it to be undoubtedly true that, under some circumstances, the record may have no legitimate ten-den ev whatever to prove a delivery. The case of Hill v. McNichol, 80 Maine, 220, is an apt illustration of this statement. In that case the following language used by the presiding judge in his charge to the jury was expressly approved by the law court, viz: “ It is no evidence' that a deed has been dedivcTed because exmtaining the; words ‘signed, sealeel anel delivered’; that is a preparatieni for delivery, because the words must be; written before; the ele;eel ean be delivereel. Nor is it anv evieleuiev in this e*ase that the* deed was delivered because it has bee*n re;e;oreled; that is net the legist legal evidence of delivery.” Again, in Hatch v. Haskins, 17 Maine, 397, cited with approval in Patterson v. Snell, 67 Maine, 559, it is said in the opinion: “The possession and production of a ele;e;d by the grantee is prima facie; evielence of its having be'en eleliveml; and for like reasons in the absence; of all contradictory testimony the; presumption arises, when found in the possession of and produe'ed by the1 grantor, that it has ne)t been delivered.”

In the case at bar there1 seems te> be no “e-ontradietory testimony” and nothing in the situation anel circumstances of the parties having any necessary tendency to repel the presumption that this eleeel, shown -to have been in the possession e>f the grantor’s representative, had neit been deliveral to the grantee. It is admitted that both before and after August 9, 189(5, the; date of the deed in cpiestiou, Ann Haley was repeatedly convicted of violating the statutes of the; state against the unlawful sale of intoxicating liquors; anel in the absence; of any other reason for the extraordinary transaction it seems entirely probable that the deed was executed as a mere; form in the; hope that the; public record of the conveyance1 of her property to another, would tend to shield her against the; enforcement of the penalties likely to be imposed upon her in these e-riminal prosecutions, anel also against any judgments that might be recovered under the civil damage act. She doubtless believed that this purpose might be as effectually sub-served by creating the appearance of a formal conveyance of the property on the records, without an actual delivery of the deed, as by a legal transfer of the title. And it is not probable that, without special instructions in regard to the necessity of a delivery, she would have intrusted such an important paper to the keeping of a child of that age. That she did not intend to be absolutely devested of her title is evident from her precaution in taking a deed of the property from her daughter back to herself.

Judgment for the plaintiff for two undivided ninth-parts of the premises described in her writ.  