
    Jackson, ex dem. Eames, against Phipps.
    a delivery is essential to the d‘edUL<i therl eanWithoutiVañ ,ai?eei’tagíantel siginufis state' i^^iSacifufi|maa “eef o® cúrft™ forasea htfiétum ho’me” in 11108. executPu and »c-deed to Bo and nor anvperson h5s behalf, being present, to receive the deed; and the grantee died in 1809, and, in 1810, A. sent the deed to the son f ¡imi heir) of the grantee; it was held tjiat there was no delivery of the deed.
    THIS xvas an actio'n of ejectment, to recover 25 acres of land „ _ , . 111 ot N°* 24., part of bcnba/s patent, in Oneida county, and a'lso ^ acres of land adjoining, called the Gore. The cause was tried at the Oneida circuit, in June last, before Mr. Justice Spencer. Both parties claimed'title to the parcel of 25 acres, under Joseph Phipps, who had been in possession of the premises for a number of years prior to giving the mortgage hereafter mentioned. The declaration xvas served on the tenant in possession the 9th of May, 1814. r t
    
    
      The plaintiff gave in evidence a mortgage of the two pieces' of land, dated the 17th of March, 1809, by Joseph Phipps, to the lessor of the plaintiff, to secure the payment of 53 dollars, which was recorded in the office of the clerk of Oneida county, the 14th of April, 1809.
    The-defendant gave in evidence a deed with warranty from J oseph Phipps, to his brother, Aaron Phipps, the father of the defendant, for 44 acres and a half of land, which included the 25 acres, but not the 12 acres in question ; this deed was dated, acknowledged, and recorded, the 27th of January, 1809.
    The defendant offered to prove, by his attorney, that the tenant in possession, on the 6 th of April, 1814, ver bally agreed with him, to hold possession of the 1,2 acres under the defendant, on a promise to sell to the tenant. This evidence*was objected to, but admitted by the judge. It did not appear, however, that the defendant, who resided in Massachusetts., knew of, or consented to, this attornment.
    . It was proved that Joseph Phipps, being in embarrassed circumstances, in the fall of the year T 808, went to his brother, Aaron Phipps, who resided at Hollistown, in Massachusetts, and agreed to give him a deed of his farm, to secure two notes of about 130 dollars, with the interest, and a small debt due to the defendant. Joseph Phipps, accordingly, returned home, and executed and acknowledged the deed of the 27th of Janury, 1809, and left it in the clerk’s office. Neither the grantee, nor any person in his behalf, was present. Aaron Phipps, the grantee, died in the fall of 1809, never having beén in this state. In February, 1810, J oseph Phipps sent the deed, enclosed in a letter, to Eli Phipps, the defendant, who, on receiving it, appeared to be surprised; but, on reading the letter, observed, that it was intended to secure the two notes which the said Joseph owed to the grantee, and which the defendant said he then held, as administrator of his father, uncancelled, and that he was disappointed in not receiving the money instead of the deed.
    It appeared that J oseph Phipps continued to occupy the premises for about three years after the date of the deed to Aaron Phipps,. and then delivered the whole to the defendant, who let them to the tenant in possession. The premises were proved to be worth about 700 dollars.
    
      ' Joseph Phipps testified, that when he executed the deed to his c rr * ,*!- brother, he informed ’him, by letter, of a-mortgage to one Jfager, for about 300 dollars, and another-' mortgage to the. state;'on part of the premises, for about -60':doílars; and it was proved that the defendant had paid off thq¿e two mortgages. A verdict was taken for the plaintiff, subject to the opinion of the court on the above'case. _
    N. Williams, for the plaintiff contended,
    1. That the deed from Joseph Phipps lo.d aron Phipps ivas never delivered to the grantee, and, therefore, void, for want of a delivery, A delivery is essential to give effect to a deed. It must be delivered to the party, or ■ ° , ..... . ... 1 . ' his attorney, unless Where it is delivered to a third person as an escrow. There must be an acceptance of the deed by' the fmonlpp "f* gidmee.
    
    ^ 2, The deed is fraudulent and void, as against creditors. The grantor was insolvent when he executed the deed tq his brother, who never saw the land; it is an absolute deed^ when, .the' parties intended it merely as security. A mortgagee is' a hona fide purchaser, and is protected by the third section of the act against such a fraudulent conveyance. ° J
    
    Sill, contra.
    The deed having "been executed pursuant to.a. previous agreement between the parties, and left at a public. office, to be recorded, must be deemed to have been delivered. It is enough that the grantee had notice of the execution of the deed, and of its being left at the office. The good sense of the rule as to delivery is, that the grantor should manifest his intentian .that the property should pass by th,e deed, and that .the1 grantee should accept of the.transferand. as the conveyance is for his benefit, his acceptance is always presumed.
    As to the allegation of fraud. The fact of the grantor being insolvent, at the time of executing the deed, does-not, of itself, make it void ; it is his selling or conveying the property to a person not a creditor. If he conveys it to a creditor, it is no fraud.. A preference of one creditor to another is not fraudvu lent; nor is .the possession of real property,, after sale, with the consent of the grantee or creditor, evidence of a fraud.
    
    As to the 12 acres,, or Gore, they are not included in any patent, and, therefore, belong to the people of the state.
    
      
      
        2 Bl. Com. 306, 307. Shep. Touch. 57, 58.
    
    
      
      
        Jackson v. Dunlap, 1 Johns. Cas. 114.
    
    
      
       1 N. R. L 75. sess. 10. ch. 44. 27 Eliz. c. 4. 38 Eliz. c. 18. Cowp. 279. 2 Bl. Com. 296.
      
    
    
      
      
        3 Johns. Rep. 71. 5 Johns. Rep. 335, 412.
    
    
      
      
        Jackson v. Brownell, 3 Caines, 222.
    
   Spencer, J.,

delivered the opinion of the court. The parties both claim, tille, under Josbph Phipps, to the 25 acre tract. The other tract is described as a Gore ; and is included in the mortgage given- by Joseph Phipps to the lessor Of the plaintiff but is not included in the deed from Joseph Phipps to Aaron Phipps. With respect to the piece called the Gore, there can' be no question. The defendant defends as landlord of the premises, and his only pretence to any title to this part of the premises, arises from his having succeeded to the possession under Joseph Phipps. The mortgage to the lessor of the plaintiff comprehending it, and the defendant having no title paramount to the mortgage, there exists no legal defence for this tract.

The date of the deed under which the defendant claims, being prior to the execution of the piortgage under which the plaintiff claims the premises, the former must prevail, if it be well and legally executed.

The objection to it is, that it never was delivered to the grantee, nor to any one, for his use, during his lifetime ; and the facts are, that, in the fall'of 1808, it was agreed, between Joseph and Aaron Phipps, that the former, who was indebted to the latter, should give him a deed of his farm, to secure the debt; that Joseph executed the deed, acknowledged and carried it to the cleric's office, for recording, on the day of its date, without the grantee, or any person on his behalf, being present, or receiving a delivery of the same; that Aaron, the grantee, died in the fall of 1809, and in February, 1810, the defendant received the said deed, as the son, and, probably, heir, of Aaroni

Under these circumstances, the deed must be considered inoperative. It is requisite, in every Well-made deed, that there be a delivery of it. This delivery must be either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing; or it ?may be by both; but bjr One or both of these it must be made; for, otherwise, though it be never so well sealed arid written, yet is the deed of no forces It may be delivered to the party himself, to whom it is made; or to any other person, by sufficient authority from him, or it may be delivered to a stranger, for, and in behalf, and to tM use of him to whom it is made, without authority ; but if it be delivered to a stranger, without any such declaration, unless it be delivered as an escrow, it seems that it is .not a guffkient delivery. (1 Shep. Touch. 57, 58. 2 Black. Com. 307. 4 Viner, 27. s. 52.) . In Jackson, ex dem. M’Crea, v. Dunlap, (1 Johns. Cas. 114.,) it was decided, that it was essential to the legal operation of a deed that. the grantee assents to receive, and that there could be no delivery without an acceptance*

A delivery of a deed, which, we have seen, is essential to its existence and operation, ex vi termini, imports that there be a recipient. It would be absurd to hold that a thing was delivered, when there was no person to receive; and, in this ease, the grantee died without any delivery to him. Without inquiring, therefore, whether the deed was frauduleht, it is,enough that it was never well executed, by delivery.

Judgment for the plaintiff.  