
    DESTY C. BUCHANAN v. W. C. CLARK et al.
    (Filed 13 December, 1913.)
    1. Trial by Jury — Waiver—Consent—Findings by Judge — Trials— Evidence — Exceptions—Appeal and Error.
    Tbe parties to an action may waive tbeir right to a jury by agreeing tbat tbe trial judge may-find tbe facts upon tbe issues involved and declare bis conclusions of law arising.tbereon (Be-visal, sec. 540), and where the judge bas acted accordingly, tbe relevant and pertinent facts so found by him are conclusive on appeal when there. is any sufficient legal evidence to support them. An exception to a finding of fact, on the ground that there was no evidence thereof, must be made in apt time before the judge.
    2. Deeds and Conveyances — Delivery to Another — Acceptance— Trials — Presumptions—Evidence.
    Where one purchases land and has the deed made to his illegiti- » mate son, and himself receives and holds the conveyances for the son, it is in fact a delivery of the deed in such manner as to vest the title of the lands in his son; and where this is done, without the knowledge of the son, the presumption is that he will accept the deed made for his benefit, and this presumption will prevail in the absence of evidence to the contrary. ' -
    3. Deeds and Conveyances — Test of Delivery — Trials—Evidence.
    Wrhere the fact of the delivery of a deed to lands is in- ques-. tion, the test is, whether the grantor in parting with its possession thereby lost control of it, and the power of recalling it.
    
      4. Same — Undisclosed Intent — Reconveyance.
    Where a father purchases lands and has a conveyance thereof made to his illegitimate son, saying at the time it was to make provision for him, but without the knowledge of the son,' who dies before his majority, a second conveyance from the same grantor obtained afterwards by the father and made to him as grantee cannot divest the title conveyed to the son in the first deed, whatever his undisclosed intent may have been at that timé.
    5. Deeds and Conveyances — Registration—Purchaser Not for Value —Actual Notice.
    The provision of Revisal, sec. 980, was intended to protect a purchaser of land for value from the claim of a grantee under an unrecorded deed, and has no application where a deed .has been delivered which conveys the title" to a son of the purchaser, and subsequently the purchaser obtains a conveyance thereof to- him'self from the same grantor without any consideration, for then, the grantor having parted with his title, the second deed is made without value, which is sufficient to avoid it.
    Clabk, C. J., dissenting. Hoke, J., did not sit.
    Appeal by defendant Clark from Lyon, J., at October Term, 1912, of Avery.
    This is an action for tbe recovery of land,‘and its decision turns upon tbe question wbetber a deed, or instrument in tbe form of a deed and sufficient to convey presently a fee-simple' title in tbe land, to Baymond Bucbanan by C. F. and B. E. Franklin bad been delivered. A second deed was executed by tbe Franklins to tbe defendant W. C. Clark, at bis request, for tbe same land. Plaintiff, wbo is tbe sole beir at law of Bay-mond Bucbanan, be having died some time between tbe dates of tbe two deeds, contends tbat tbe first paper was duly delivered to defendant W. 0. Clark, by tbe Franklins, tbe grantors, for Baymond Bucbanan,, and tbat Clark agreed to receive and did receive it for tbat purpose, and tbat tbe title, thereby, immediately passed to Bucbanan, while Clark denies tbat there was such a delivery, and avers tbat be acquired tbe title. Tbe parties agreed to waive a jury trial, and tbat tbe judge should find tbe facts and- state bis conclusions of law thereon, and tbat judgment should be entered accordingly. Tb© facts were found by tbe judge, in accordance with tbe agreement of tbe' parties, andj it is sufficient to state tbat there was ample evidence, without setting it out, .to support tbe said findings, which are as follows : *
    1. That Raymond Buchanan was an illegitimate son of the plaintiff.
    2. That the defendant W. 0. Clark was the father of said Raymond Buchanan.
    3. That the said Raymond Buchanan died intestate on 15 May, 1911, leaving the plaintiff his sole heir at law.
    4. That on 16 March, 1910, the defendants W. C. Clark and 0. F. Franklin and R. E. Franklin made an exchange of land, and in consideration of the conveyance of certain land to the defendants 0. F. Franklin and R. E. Franklin, they, at the request of the said W. 0. Clark, executed a deed in fee simple to said Raymond Buchanan for the 'lands in controversy, which deed was duly acknowledged by the said defendants Franklin, before T. M. Yance, a justice of the peace, who took the acknowledgment of the said C. F. Franklin and wife, R. E. Franklin, and her privy examination, the said deed being in proper form and signed and sealed by both the Franklins before said acknowledgment.
    5. That after the due execution of the deed by the Franklins, and the probate of the same by the justice of the peace, it was delivered to the defendant W. 0. Clark, for Raymond Buchanan, who was then in the State of Kentucky. .
    6. That Raymond Buchanan died before he was 21 years of age.
    Y. That on 21 November, 1911, after the death of Raymond Buchanan, and after defendants knew of his death, the Frank-lins, at the request of defendant W. 0. Clark, executed a second deed for the property, and delivered the same to the defendant W. 0. Clark, and in this second deed W. 0. Clark was named as grantee.
    8. That during the month of April, 1912, ’W. C. Clark handed the first deed in which Raymond Buchanan was named as grantee, to defendant 0. F. Franklin.
    
      9. Tbat thereafter, upon demand of plaintiff’s attorney, tbe defendant 0. F. Franklin delivered said deed to .tbe plaintiff, and tbe same was registered in Avery County.
    10. Tbat at tbe time of tbe execution of tbe second deed above mentioned tbe defendant W. C. Clark executed and delivered to tbe defendant C. F. Franklin a paper-writing as follows:
    State of North Carolina — Avery County.
    Tbis is to certify tbat I hereby bind myself,, my heirs and executors, to pay to C. F. Franklin and wife any damages that ■ may lawfully be awarded against them for making second deed for a piece of land, being a tract of land tbat said W. C. Clark. intended to give to Raymond Buchanan.
    Witness my band and seal, tbis 21st day of November, 1911.
    His
    W. O. X CLARK. [seal]
    11. That tbe defendant Clark caused tbe said second deed to be registered before tbe registration of tbe first deed above mentioned.
    12. Tbat there was no consideration for the execution and delivery of tbe second deed.
    13. Tbat at the time of the execution of tbé first deed tbe grantors therein and tbe said W. C. Clark intended tbat tbe land.in controversy should belong to Raymond Buchanan in fee simple.
    14. Tbat tbe rents and profits derived from tbe land in controversy since the death of Raymond Buchanan are $25.
    15. Tbat tbe defendant W. C. Clark withholds tbe land in controversy from the plaintiff, and has been in possession of tbe same, withholding tbe same from tbe plaintiff, since tbe death of Raymond Buchanan on 15 May, 1911.
    Tbe court thereupon adjudged, upon tbe facts so found, tbat plaintiff is tbe owner of tbe land and entitled to tbe possession thereof; tbat defendants have no interest therein, and tbat tbe second deed of tbe Franklins to W. 0. Clark be delivered up and canceled, and that the clerk, of the court also cancel the same on the registry thereof, and also gave judgment against defendant for the costs. The defendant W. 0. Clark excepted and assigned errors as follows:
    1. To the failure and omission of the court to find that it was the intention of W. C. Clark to deliver the deed to Raymond at the time of the death of the said Clark.
    2. To the failure and omission of the court to find that it was .•the purpose and intention of W. C. Clark to make some provision for Raymond Buchanan so as to make him equal with his other children, and that this purpose was defeated by the death of the said Buchanan before the time at which the said Clark.intended to deliver the deed.
    3. To the judgment, upon the ground that,, on the facts found, it should have been rendered in favor of the defendant W. 0. Clark.
    
      Harrison Baird,, L. B. Love, and Edmund J ones for plaintiff.
    
    
      8. 'J. Ervin, W. G. Newland, and Lawrence Wakefield for defendant.
    
   "Walker, J".,

after stating the case: "We are of opinion that the defendants in this case are completely foreclosed by the judge’s findings of fact. Parties can have their causes tried by jury, by reference, or by the court. They may waive the right of trial by jury by consenting that the judge may try the case without a jury, in which event he finds the facts and declares the law arising thereon. Revisal, sec. 540. His findings of fact are conclusive, unless proper exception is made in' apt time that there is no evidence.to support his findings or any one or more of them. The present Chief Justice, in Matthews v. Fry, 143 N. C., 384,, thus states the-procedure in such cases: “The parties waived a jury trial and agreed in writing that the judge should find the facts and enter judgment -thereon as upon the facts so found he might decide the law to be. 'The judge found the facts and entered judgment thereon in favor of the defendant. When the'certificate of opinion was presented in the court •below, -the plaintiff moved for judgment in accordance therewith. The defendant resisted this judgment and asked for trial, de novo, and insisted that some of tbe findings of fact bad been made by tbe judge without any evidence to support tbem. Tbe findings of fact by tbe .judge, wben authorized by law or the consent of parties, are as conclusive as wben found by a jury, if there is any evidence,” citing Branton v. O’Briant, 93 N. C., 103; Roberts v. Insurance Co., 118 N. C., 435; Walnut v. Wade, 103 U. S., 688. Tbe findings have tbe force and effect of a verdict. This is also the rule in other jurisdictions. Griffith v. Manufacturing Co., 115 Ga., 592. Tbe point was expressly decided, with reference to the delivery of a deed, in Avent v. Arrington, 105 N. C., 377, where it was held that tbe finding as to delivery, supported by some evidence, was not reviewable here. This question is important, for a bare reference to the judgment will show at once that tbe judge has found that, in fact, there was a delivery of tbe deed by tbe Franklins to W. 0. Clark for Eaymond Buchanan. Tbe following two findings, aside from others of equal force, may be selected as conclusive upon this question:

“1. That after tbe due execution of tbe said deed by tbe defendants Franklin, and the probate of tbe same by tbe said justice of tbe peace, tbe said deed was delivered to tbe said defendant W. 0. Clark, for said Eaymond Buchanan, who was then in tbe State of Kentucky.
“2. That at tbe time of tbe execution of the first deed, tbe grantors therein and tbe said W. 0. Clark intended that the. land in controversy should belong to Eaymond Buchanan in fee simple.”

Conceding, for tbe sake of discussion, that tbe defendant' W. C. Clark has distinctly excepted, upon tbe ground that there is no evidence to sustain this finding, which may be questionable, we yet think that tbe evidence is sufficient for tbe purpose. The deed was prepared on 16 March, 1910; actually delivered to defendant W. 0. Clark on tbe same day, for Eaymond Buchanan, bis son, after having been duly probated, and was registered 8 May, 1912. O. F. Franklin testified that be delivered tbe deed to W. C. Clark, who bad said that be “wanted tbe land deeded to Raymond.” Mrs. Franklin testified that “W. C. Clark bad tbem to make the deed to Raymond, so bis other children conld not knock him out of it,” and further, that W. 0. Clark took the deed, said nothing about delivery, but that he wanted Raymond to have it. The second deed was executed by the Franklins to W. 0. Clark after the death of Raymond Buchanan, and on 21 November, 1911, and .there was no consideration for it. The Franklins told-Clark they did not want to- make the second deed, as it was illegal, they having already made one to Raymond Buchanan, and Clark gave 'them'the paper-writing, agreeing thereby to indemnify them against damages for making the second deed. All this, of itself, was evidence sufficient to support the findings, without any reference to other testimony in the case. There 'could not well be a “second” deed unless there had been a “first” one. The Franklins simply signed the paper, acknowledged it as their act and deed before the justice, and delivered it to W. 0. Clark, who accepted it with the distinct understanding between them that he held it for his, natural son, Raymond Buchanan. This was all done at the time. He so held it for a year and eight months or more, and then the second deed was.made.

After the first deed had .vested the fee-simple estate absolutely in Raymond Buchanan,, nothing that the parties did afterwards, without his consent, could divest it. It makes no difference what the undisclosed or unexpressed intention of "W. C. Clark was; having received the deed for his son, he is bound by his act, and the title then passed from the grantors, the Franklins, to Raymond Buchanan. The deed had passed out of the -possession of the Franklins and they had lost control of it and all power of recall, and they so regarded the transactions. This is the supreme test of a delivery. In Phillips v. Houston, 50 N. C., 302, Judge Battle clearly stated the rule: “The delivery of a deed ‘depends upon the fact, that a paper, signed and sealed, is put. out of the possession of the maker.’ That, we think, is the true test, and if it appears that the grantor, or donor, has parted with the possession of the instrument to the grantee or donee, or to any other person for him, the delivery is com-píete, and tbe title of the property granted or given thereby-passes. But it will be otherwise if the grantor or donor retain any control over the deed; as if he, when he hands it to a third person, request him to keep it and deliver it to the person for whom it is intended, unless he shall call for it again. These principles will be found to govern all the cases, beginning with Tate v. Tate, 21 N. C., 22, running through Baldwin v. Maultsby, 27 N. C., 505; Snider v. Lackenour, 37 N. C., 360; Ellington v. Currie, 40 N. C., 21; Roe v. Lovick, 43 N. C., 88; Gaskill v. King, 34 N. C., 211; and Newlin v. Osborne, 49 N. C., 157, and down to Airey v. Holmes, ante, 142. Tried by the above mentioned test, the delivery of the deed, in the present case, must be declared to be complete. The donor handed the paper, signed and sealed, to a third person, for the use- of the donee, without any reservation whatever, and when it was returned to her she immediately handed it to another person, for the donee,, without the slightest intimation that she was to have any control over it. The delivery, however, was perfect when the instrument was handed to the first person, and it made no difference whether it was registered before or after the donor’s death.” This case, at a long interval, but after being thoroughly approved as laying down the correct doctrine, was followed by Robbins v. Rascoe, 120 N. C., 79, and Fortune v. Hunt, 149 N. C., 358, in'which Justice Brown reiterated the principle as follows: “When the maker of a deed delivers it to some third party for the grantee, parting with the possession of it, without any condition or any direction as to how he shall hold it for him, and without in some way reserving the right to repossess it, the delivery is complete and the title passes at once,, although the grantee may be ignorant of the facts, and no subsequent act of the grantor or any one else can defeat the effect of such delivery,” citing Phillips v. Houston, supra, and Robbins v. Rascoe, supra. See Tate v. Tate, 21 N. C., 26; Hall v. Harris, 40 N. C., 303. “A deed is good if delivered to a stranger to the use of the grantee, and at the time it was thus delivered.” Threadgill v. Jennings, 14 N. C., 384. It appeared in Tate v. Tate, 21 N. C., 26, that David Tate executed a-deed of bargain and sale conveying land to bis infant children, and delivered the deed to.their uncle, Hugh Tate, in whose possession it remained until his death, when the bargainor went to the widow of Hugh Tate and obtained the deed before it was registered and canceled it by tearing off his signature and that, of the witness, and he, David Tate, conveyed the same property to another. The delivery of the deed was upheld, the Court saying: “Where the maker of a deed parts from the possession of it to anybody, there is a presumption that it was delivered as a deed for the benefit of the grantee, and it is for the maker to show that it was on condition, as an escrow. Such a delivery to a third person is good, and the deed presently operates, and infants may assent to such a deed to themselves, and their assent is presumed until the contrary appears,” citing several English cases. Judge Henderson said in Kirk v. Turner, 16 N. C., 14: “A delivery of a deed is in fact its tradition from the maker to the person to whom it is made, or to some person for his use; for his acceptance is-presumed until the contrary is shown.' It being for his interest, the presumption is, not that he will accept, but that he doesThe facts in Morrow v. Alexander were that a father, residing in South Carolina, signed and sealed a deed to his daughter, residing in North Carolina, and delivered it in South Carolina to his son, to be given to his daughter; held by this,Court that the delivery to his son was complete,- and the title passed, citing Gaskill v. King, 34 N. C., 211, which cites and sustains Tate v. Tate, supra. McLean v. Nelson, 46 N. C., 396, is also in point, and is to this effect: “When one delivers a deed to a third person in the absence of the grantee, the latter is presumed to accept it, so that it forthwith becomes a deed, and the legal effect is to pass the property. This presumption may, of course, be rebutted by proving that the party refused to accept it; but until he refuses, his assent is presumed for the ■ purpose of giving effect to the instrument as a deed. Ut res magis valeat quarn pereatT In the last case, Judge Pearson rests the presumption of an acceptance by the grantee, not only upon the benefit conferred by the deed and the further presumption that a man will take advantage of that which advances his own interests, but says that tbe reason lays deeper, and that it also rests upon the maxim ui res magis valeat quwrn pereat. The presumption of assent on the part of the grantee remains until there is a dissent by him or his heirs, and is sufficient to1 vest the title.

The plaintiff, who is his heir, expressly assents to the conveyance, and, therefore, holds an irrevocable title to the land conveyed by the deed. No one,, it is true, can be forced to take a title against his will, but the right of dissent prevents this from being done. It is the delivery to the third person for the grantee that passes the title, upon his presumed assent; the deed, though, is put beyond the control of the grantor, and his power of recall is forever gone, because, as to him, it has been delivered. This is the principle established in the earliest period of this Court, and it has been followed ever since. It was illustrated practically in Phillips v. Houston, 50 N. C., 302, where it was shown that the donor signed and sealed the deed and delivered it to Holland, the witness, and requested him to take it to the courthouse and have it recorded, which was not done until after the donor’s death; it was held that the delivery to the first person (Holland) was perfect, and it made no difference whether -it was registered before or after the donor’s death,, the Court saying : “In the case of Hall v. Harris, 40 N. C., 303, it was said by the Court that the delivery of a deed depends upon the fact that a paper signed and sealed is put out of the possession of the maker. That, we think, is the true test, and if'it appears that the grantor or donor has parted with the possession of the instrument to the grantee or donee, or to any other person for him, the delivery is complete, and the title of the property granted or given thereby passes. But it will be otherwise if the grantor or donor retains any control over the deed; as if he, when he hands it to a third person, requests him to keep it and deliver it to the person for whom it is intended, unless he shall call for it again. These principles will be found to govern all the cases, beginning with Tate v. Tate, 21 N. C., 22, and then a large number of North Carolina cases are cited.” To those may be added two of recent date in this Court, Helms v. Austin, 116 N. C., 751, and Frank v. Heiner, 117 N. C., 79; and also Adams v. Adams, 21 Wall. (U. S.), 185; Hedge v. Drew, 12 Pick. (Mass.), 141. The Franklins, when they delivered the deed to W. 0. Clark, said absolutely nothing indicating that they intended to reserve the least control over the deed. They parted with it unconditionally and the title at once passed to the grantee. Nothing that was done afterwards by them alone would.destroy its efficacy as a deed, or even impair it.

It is unquestionable, too,, that probate and registration of a deed furnish presumptive proof of its delivery, and were, therefore, additional evidence to sustain the finding of the fact. Fortune v. Hunt, supra. They were more than this, being prima facie evidence of the delivery, and sufficient in themselves and even as against opposing proof, to support the finding as to the fact of delivery, it being for the judge, acting like a jury would, to weigh the evidence and decide upon its preponderance. If there was any evidence, as we have shown, the finding cannot be disturbed.

The supplemental finding, as to the intention of W. C. Clark that his spn should have the land, as his part of the estate, so that he could share with the other children, tends to strengthen the views already stated. The death of his son so soon was an event’he may not have contemplated, but it was accidental, and did not alter the fact of the delivery, or tend to disprove it, but rather the contrary.

The act of 1885, ch. 147 (Revisal, sec. 980), has no application, as defendant is admittedly not a purchaser for value, and the judge so finds, and the circumstances of the case would exclude him from its benefits. Austin v. Staten, 126 N. C., 783.

Of course, the decision of this case must rest upon a correct understanding and statement of the facts as found by the court. The salient facts are these:

1. That after the due execution of the deed by the Franklins to Raymond Buchanan, and the probate of the same by the justice of the peace, it was delivered unconditionally to the defendant W. 0. Clark, for Raymond Buchanan, who was then in the State of Kentucky. This is the judge’s sixth finding of fact.

2. The deed of the Franklins to Raymond Buchanan was executed and delivered by them to W. 0. Clark for him 16 March, 1910, and the subsequent deed of the Franklins to W. 0. Clark, which they told Clark they did not have th© right to make, was executed on 21 November,, 1911, or one year and eight months after the delivery of the other deed, and not even anything said between them about it during this long interval of time.

3. W. C. Clark, on that day (21 November, 1911.) when her insisted on the execution of the deed to him by the Franklins and gave them the writing admitting the execution of the prior deed, had full actual notice of the latter deed. This is admitted. This, of course, is not notice under the Connor Act, but he was not a purchaser for value, as the judge expressly finds, having paid nothing for the deed. This was also admitted on the argument. To hold that he is protected by that statute would violate its very principle, and would enable him to perpetrate a fraud upon his son, for whom he voluntarily held the other deed.

4. It is perfectly clear that the Franklins parted with the possession of the deed with intent to pass the title to Kaymond Buchanan and put the same beyond their control or recall. They so say, and the judge so finds. They could not have recovered the deed, or the land by action. The title, therefore, passed out of them, and there is no one in whom it could have vested except Raymond Buchanan, as there was no intention in the minds of the parties to vest it in any one else. ~W. C. Clark so understood it, as he said: “I gave the deed to my wife to hold; I was acting for this boy, though he did not know it, and I was not his agent.” But this is evidence, and we must abide by the facts as found by the judge, which plainly fix him with thé intention to accept the deed, not for himself, nor for any one else, but his son alone. No subsequent change of mind can affect -the result.

5. The additional finding of the court, under the certiorari, goes no further than to show an undisclosed or unexpressed intention of W. 0. Clark to do something which he did not do at the proper time, and is based altogether upon evidence as to wbat be afterwards, and long afterwards, said about it, and after bis son bad died. He could not tbus recall a delivery already completely made, and if we should so bold, no man’s deed would be safe from attack, and every title in tbis State would be in constant jeopardy, depending not upon wbat a grantor may bave done, but upon bis uncommunicated intentions or tbe thoughts bidden in tbe inner recesses of bis mind, even if be bad them. It will place every grantee at tbe mercy of bis grantor.

No error is disclosed in tbe record.

No error.

Hoxe, J., not sitting.

Clark, C. J.,

dissenting: It is elementary that delivery is essential to a deed. In my opinion, there is no evidence whatever of a delivery in tbis case; on tbe contrary, tbe facts show conclusively that there was no attempted delivery, and no present intention shown to deliver. Tbe evidence shows an intention not to deliver till an event which has not yet happened, i. e., Clark’s own death.

Tbe facts, briefly stated, are that Clark exchanged lands with tbe defendant Franklin and bis wife. Clark executed bis deed to Franklin and in exchange Franklin was to convey another tract to him. But at Clark’s request, Franklin inserted in tbe deed tbe name of Raymond Buchanan, tbe illegitimate son pf Clark. There was no delivery to Buchanan, no consideration paid by him, and no agreement by Clark to bold for him. Buchanan was a stranger to tbe transaction, and there was nothing to make Clark a trustee for'him. Clark, in effect, remained tbe true owner of tbe land, and retained tbe same control over it and over tbe deed as be bad bad over tbe land which be conveyed to Franklin in exchange. He bad an intention, be testifies, to deliver tbe deed to Buchanan at bis own death; but it was an intention founded on no consideration and based upon no agreement with Franklin or Buchanan, and such intention remained unexecuted. Buchanan never saw tbe deed, so far as tbe evidence shows; bad no agreement about it, and was not even aware of its existence. He was at tbe time in a distant State, and died before becoming 21 years of age and without having returned to North Carolina.

• On Eaymond’s death, Clark changed his mind, handed the deed back to Franklin and wife, and obtained a new deed for himself. At Franklin’s request, he gave him an agreement to pay any damages which might accrue to him by reason of giving Clark a second deed to the land which he had “intendkd to give* to Eaymond Buchanan.” This is so expressed in the contract, and shows that he had not given the land to Eaymond. His statement to Franklin when he received the deed, that he intended to have the deed delivered to Buchanan at his own death, shows that he was to retain control over it. The case, therefore, comes squarely under the decision in Weaver v. Weaver, 159 N. C., 18.

After Eaymond’s death, upon the demand of the plaintiff’s lawyer, Franklin surrendered the deed, which, Clark had returned to him, to the plaintiff, who had it recorded, but sub-, sequent to the registration of the, deed to Clark. The deed never having been delivered to Buchanan, this forcible obtaining it after its return to Franklin and its registration thereafter could have no effect. The privy examination of Franklin’s wife and acknowledgment of her husband to the first deed could have no validity, in view of the fact that there had been no delivery to Buchanan. The deed was based upon no consideration moving from Buchanan. It remained in the control and possession of Clark, who did not agree to hold it for Buchanan, but merely expressed an intention to give it to him at his own death. Buchanan could not have maintained an action against Clark to convert him into a trustee nor to compel him to deliver the deed.

Clark retained control over the deed and of the land. He has parted with neither the title nor the possession of the land, and retained the right to cancel the deed at will. He could have maintained, upon tender of the return of the deed to Franklin and wife, an action to compel Franklin and wife to execute their contract and to deliver to him a deed for the land in exchange for tbe land be bad conveyed to them. He could not, “unbeknownst” to both himself and Buchanan, pass the title to Buchanan and deprive himself of his own property, when he has received no consideration therefor and had not expressed even an intention to do so, except an intention, without any consideration from Buchanan, to deliver the deed to him at his own death% He has done nothing to deprive himself of his own property, merely because he had an unexecuted intention, on a future event which has not occurred, to pass the title to Buchanan, who died before the event occurred.

The whole matter remained in fieri, and Clark imssessed the right to cancel his intended gift of the property to Buchanan and to take the title to himself, which he has done. Until delivery to Buchanan, the paper-writing, though signed and acknowledged by Franklin and wife, was not a deed, and had no more effect than if it had been a blank piece of paper. It is different when such paper is delivered to the grantee named therein..

In obedience to the writ of certiorari from this Court, the judge made the following additional finding of fact: “That the defendant W. C. Clark purchased and paid for the land on his ■own initiative, without the knowledge of Raymond Buchanan, intending at the time to deliver the deed to the said Raymond Buchanan on his return to the State, so that the said Raymond Buchanan, who was illegitimate, should share with his other children in his éstate; and the said Raymond having died be-, fore" his return to the State, the said ~W. C. Clark surrendered the deed to the grantors and procured the other deed to himself.” It is thus found as a fact by the court, by consent of the parties, that the deed was never delivered to Buchanan; that Clark received it, not as his agent, but as a purchaser for value, and held it subject to his own control of it, and with the intention to deliver it to Buchanan on a contingency which did not happen, and that he was not under any compulsion to have delivered it at all.

Besides, under Revisal, 980, Clark being a purchaser for a valuable consideration, and his deed registered first, the conveyance to Buchanan, even if it bad been delivered and even if it bad been registered by authority, was not valid against him. It is true, Clark bad notice of the prior deed. But it has been held in cases too numerous to be cited that “no- notice, however full and formal, can supply notice by registration, and a purchaser for value under a prior registered deed is not affected by notice of an unregistered deed, even if the holders thereunder are in possession of the property.” In this case Clark remained in possession, and Buchanan had possession neither of the deed nor of the land. Tremaine v. Williams, 144 N. C., 114; Collins v. Davis, 132 N. C., 106; Blalock v. Strain, 122 N. C., 283; Patterson v. Mills, 121 N. C., 267, and cases cited; Hinton v. Leigh, 102 N. C., 28; Blevins v. Barker, 75 N. C., 436.  