
    John L. F. Kirk and others infants by their next friend John L. Kirk, v. Josiah Turner, administrator de bonis non of Thomas Whithead
    From Orange.
    A delivery of a deed is a parting with the possession of it by the grantor in su.cn a manner, as to deprive him of the right to recall it.
    Where a deed was handed to the subscribing witness, as the agent of the grantor, for the purpose of being proved, and was by the agent delivered to the grantor without being proved, held that this was not a delivery.
    It seems where a claim is asserted on the part of infants, who have an appearance of right, each party must pay their own costs.
    Original BiiiX, the allegations of which, were that Sarah Kirk, the grandmother of the Plaintiffs, being about to contract a marriage with Ihomas Whithead, and being desirous of settling her property upon the Plaintiffs, applied to one Snipes to draw deeds of gift to them for certain slaves. That the deeds were drawn accordingly, reserving a life estate in the slaves to Sarah ; that Sarah executed the deeds, and that they were attested by Snipes, and left with him for safe keeping. That after the marriage was solemnized, the deeds came into the possession of Whithead, and were by him destroyed. The bill also alleged, that Whithead had notice of all these facts, and had in his life-time, disclaimed all right to the negroes, except a light to their services during his life, and prayed that the deeds might be set up in this Court, and the title of the Plaintiffs protected in the same manner as if they had been regularly registered.
    
      The answer denied all personal knowledge of transaction, and put the Plaint iffs to strict proof of their case.
    Snipes,on his examination, proved that the deeds were drawn by him, signed and attested as alleged in the bill. That after he witnessed them, he was asked by Mrs, Kirk if he would be at the next Court, as she wished the deeds recorded, that he replied it was uncertain, and that she had better go and acknowledge them, when the deeds were handed to Mrs. Kirk, and liad not since been seen by the witness.
    Another witness, who was seriously impeached, swore that Whithead and his wife, botli informed him, that the latter had, before the marriage, given her negroes to the children of John L. Kirk, the present Plaintiffs, reserving a life estate to them both.
    A third witness testified that he had applied to Whit-head to bay a negro hoy, formerly Mrs. Kirk’s, and was informed, that he could not make a good title to him.
    
      Murphey, Badger, and W. H. Haywood, for the Plaintiffs,
    cited Bank of Newbern v. Pugh, (l Hawks, 198— Shep, Touch. 38.)
    
    
      Nash, on the other side, was stopped by the Court.
   The opinion of the Court was delivered by

Hunde ns ON, J udge :

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, and if the person receiving it for another, is authorised to do so, it is not only immediately the maker’s deed, but it cannot be rejected by the gran* tee. If he has not authorised the person to receive it, yet it is the maker’s deed, until he, for whose benefit it is made, rejects it; it does not wait for the approbation of this person; before it becomes a deed: for his accept-anee ¡s presumed, until the contrary is shewn, it be-^01' h‘s interest, the presumption is, not that he will accept, but that he does. Therefore, if there was any ev¡denee, that, the deed in question was left with Snipes, for the benefit of Mrs. Kirk's grandchildren, and and was not subject to her control, the delivery to him for the use of the children, would have been complete, and the deed efficacious, notwithstanding his re-delivery of if to her, for the purpose of registration. But the transaction, I think, by no means bears this aspect. Mr. Snipes was called on to write the deed as a settlement, preparatory to the marriage which Mrs. Kirk then contemplated : in this, he acted as much in the character of her agent, as that of the grandchildren. His having the paper in his hands, might well arise from his relation to her ; there were no words showing that Mrs. Kirk parted with the possession or control of the paper. The request that he would attend Court and prove the deed, neither shows, that the act, on her part, was intended to deprive her of the control of it, or that the deed was then complete, or that she lost her loens pocniteniice, which it is presumed she intended to retain, at least, until there was something like a certainty of her marriage. In fact, her conduct shews, that it was her intention then, in case of the marriage, to make such a settlement, and no more ; at least it does not furnish sufficient evidence, that the transaction to which Mr. Snipes testifies, was such an one as to divest her of the property, and vest it in the Plaintiffs, which it must he affirmed to be, before we can set up the deed, am! deprive her husband of the property. If this transaction did not divest her of the slaves, it may be asked what did, if there was a conversation in which she stated that she had given the property to her children, if it should be referred to this inchoate intention, it would not pass the property, for we see that this intention had not that effect. It would be unfair t® refer it to a parol gift complete, when there is ubis transaction to which we may refer her words, and with the more certainty, as her conduct in this transar-tiorn refutes all idea of a parol gift, for it appears, that if she designed to give, she preferred a written transfer, and had the means in her power of making one.

The declarations of the husband may also be referred to the same attempt; and her conduct afterwards, in not having the «iced registered, accompanied by his declarations, proron by a person shewn to be of undoubted credit, is a full exposition of her views throughout, viz. that siie intended to act iu this particular, in case she was to marry, as she pleased ; and if disposed to make the settlement, site might use the deed for that purpose, prepared by one in whose skill and judgment she had confidence. That she did not intend to part with the deed, is supported by the circumstance, that on its face, it is not made to depend on the event of her marriage, but is absolute, which would, from the attempt proved by Snipes, if final, deprive her of her property, marriage op no marriage which I think it, is evident she did not design.

„ Tiie probability is that she intended then to give validity to the deed by some after act, if she married ; if not, it was to have no effect, it seems she changed her mind. As this is a claim asserted on behalf of infants who had an appearance of a right, each party must pay his own costs.

Brur. DISMISSED.  