
    John L. Younge, v. William Moore, Executor of H. Moore.
    The delivery of a deed of chattels to the use of the donee, vests the property of the chattels in the donee, presently.
    The husband may commence proceedings at law in his own name, without joining that of his wife, for any personal estate which accrues to his wife, or to her and him jointly during their marriage, Vide 1 Roper, Hus. & Wife, 210, 1 Chit. PI. 74.
    After the unconditional delivery of a deed, it can neither he revoked, varied, contradicted, nor differently explained by the subsequent declarations of the grantor.
    A deed which tranfers property by the words, “give, convey and deliver,” with a clause of warranty, cannot be construed to be testamentary.
    Tried* before Mr. Justice Fkost, at Fairfield, Extra Term, July, 1846.
    This was an action of Trover for five slaves, claimed under a deed 10 plaintiff and wife, the daughter of the grantor. The deed included thirteen slaves. All, except these in dispute, had been delivered to the plaintiff in the life time of the grantor.
    The defendant moved for a non-suit, on the grounds that no delivery of these negroes had been made by the donor—and that the action should have been brought by the plaintiff and his wife jointly.
    . The non-suit was refused.
    The defence was, that the deed had been obtained by fraud and imposition on the weakness of the donor.
    It appeared in evidence, that Henry Moore had adopted the mode of dividing his estate among his children by separate deeds, and that he had at the same time executed a will in accordance with these deeds, being legally competent to do so.
    The jury rendered a verdict for the plaintiff. The defendant appealed and renewed his motion for a non-suit. He also moved for a new trial on grounds that will sufficiently appear in the opinion of the Court.
    Buchanan, for the motion.
    
      Ground 1st. There was no delivery of the negroes by H. Moore, nor by defendant, his representative, and both refused to deliver, and both claimed the property, Henry Moore in his own right, and defendant as his representative in law. No consideration passed from John L. Younge to H. Moore. Unless the delivery of the deed of gift was a symbolical delivery of the properly, the intended gift was never consummated, and stands on the footing of a parol gift without delivery, which is void in law.
    The cases cited on the circuit by plaintiff’s counsel, relate to parol gifts. I allude to cases decided in our own State, to wit: Blake v. Jones, 1 Bailey’s Eq. Rep., 144; and Reid v. Colcock, 1 N. & M’C., 602, and 1 M’C., 505. One case in our Reports was cited by his Honor Judge Frost on the trial, in which a deed of gift was made; but in that case the donee lived with the donor, and by the construction given to the law at that time the possession of the donor was consistent with that of the donee, so that delivery in the view of the law was not effected by delivery of the deed, but by the possession of the property. 1 did not take down the case, Judge Frost, I have no doubt, can refer to it. The cases cited by Col. Gregg, turned on questions of delivery under parol gifts. In this case there was no delivery of property constructive or actual, unless the deed made one. There is no decision that I can find in point in our State Reports, and I have come to the conclusion that the question has not been decided, or if decided, not reported in this State.
    In 2 Kent’s Comment., pages 438 and 439, the doctrine of delivery is discussed, and in p. 439 he uses this language, (after laying down the rule that delivery generally is essential,) ‘fit is nevertheless limited or assumed, in ancient and modem cases, that a gift ofa chattel, by deed or writing, might do without delivery; for an assignment in writing would be tantamount to delivery.” According to Chancellor Kent, this of symbolical delivery is only hinted or assumed, and that in three cases quoted, as a substitute for real delivery, and not firmly settled. Of the three cases quoted, I have exami ned one, the case of Irons v. Smallpiece, 2 Barnwell & Alderson, 557, and that was a parol gift, and the question oí' symbolical delivery was not before the Court, nor decided on in that case. Some of the English Judges “hint or assume,” that if the gift had been by deed, the delivery would not have been so essential, but such doctrines are not safe guides, certainly they are not authority. The leaning of Judge Kent’s mind, is, that delivery actual is essential in all cases of gifts personal, and he cites in confirmation, 1 Maddock’s Ch. Rep., 176; 1 Dyer, 49; Pearson v. Pearson, 7 Johns. Rep., 26; Fink v. Cox, 18 Johns. Rep. 663; Pitts v. Mangum, 2 Bailey’s S. C. Reports, 588. See 10 Johns. Rep., 293, and Steedman v. M’Neil, 1 Hill’s Reports, 194. The whole doctrine of symbolical delivery, as laid down in the books, seems to result in this, that such a delivery must be made as will give the donee dominion over the property, regard being had to the nature of the subject matter of the gift; 2 Kent’s Com., 439; Hawkins v. Blewit, 2 Esp. Rep., 663; Noble v. Smith, 2 Johns. Rep., 52. And there is no necessity for dispensing with actual delivery in a gift of negroes in the case of a deed, more than in that by parol; and the donor’s seal importing consideration is no answer, when the deed itself shews there was no valuable consideration, but that it was a mere gratuity based on good will and affection, as in this case. And all the gifts have the same basis. The locus pen-ilentice ought to prevail in both cases. Symbolical delivery dont apply in a case of sale by deed. There the contract binds; there never was a locus penitential to either party after the contract. The case of Southcote v. Sebring, 2 Hill, p. 587, was a sale for a valuable consideration. And we can easily understand why the right of property should vest without delivery under a contract, when the purchaser had fulfilled his part of the contract.
    
      A deed of gift, when so expressed on its face, is a mere contract to give, and being without consideration, cannot be enforced in law when delivery does not follow the gift; Jacob’s Law Dict., 3 vol., pages 182 and 183. Gifts of personalty are here spoken of both by deed and parol, and delivery is laid down as essential, not symbolical, but actual, and no distinction is made. The point is not formally discussed; but no inference certainly can be drawn for delivery of a deed, being symbolical delivery of the property given, but as I conceive, the contrary.
    The kind ofgifts under consideration, and those causa mortis, have a kindred nature, and actual delivery is essential to each-Toller’s Law of Executors, 233 and 234. The doctrine of symbolical delivery results in this, that the donor by deed or parol must give such dominion over the property to donee, as the nature of the property given will permit. Giving the keys of a warehouse is giving power and authority over the articles in the warehouse, and is the only practical delivery that can be made. That is the true meaning of symbolical delivery, and a proper illustration.
    It cannot be pretended that the words, “signed, sealed and delivered,” in the deed, refer to any thing more than the deed, and mean neither more nor less than that the deed was “signed, sealed and delivered,” and there was the same reason for and the same ability to deliver in this instance, as if the gift had been by parol. And the Court would have been right in so deciding.
    
      Ground 2d. In Archer v. M’Fall, 1 Rice’s Rep., p. 73 and 74, the declarations of Archer, the donor, were admitted in evidence.
    The rule established in cases, Sims v. Saunders, Harper’s L. Rep., 274, and M’Kane v. Bonner, 1 Bailey, 113, is, that the declarations of donor are admissible, when evidence of gift is imperfect and inconclusive.
    The circumstances of this case made the gift uncertain in its nature and operation.
    1st. There was no delivery of the negroes, and a claim of property set up by H. Moore, the pretended donor.
    
      2d. The paper, in its face, was testamentary, and not in the usual or proper form of a gift, and was so when the plaintiff himself proved that the whole was done under the direction and immediate supervision of a Lawyer, learned in the law, and whose mind and talents were greatly extolled by plaintiff on the trial.
    3d. A will was made and insisted on by H. Moore, at the same time, disposing of the property in dispute i n the same way as did the deed of gift. 1 Johns. Chane. Rep., 240 and 257; Souverbie v. Arden.
    4th. The great temporary debility, mental and bodily, of Henry Moore at the time, made bis acts at that time uncertain in their legal validity, and made him a competent witness to explain them afterwards, when his body and mind had been restored to their usual vigor and health. II. Moore was eighty-six years old at the time, and proved to have been laboring under great prostration, mentally and bodily. The question of fact, whether II. Moore fully knew and understood what he was doing so as to malee his acts valid in law, was an open one; and the validity of the gift uncertain, and his subsequent declarations competent to explain.
    
      Ground 3d. Is based on reasons given in the 2d ground.
    
      Ground 4th. The plaintiff, as stated in the brie!', introduced evidence in reply; and propounded to one witness a question which called for the declarations of Henry Moore, after the deed was made. The witness answered the question, and the question and answer both related entirely to the validity of the deed, and the answer consisted of the declarations of II. Moore. The plaintiff did not withdraw nor move to withdraw the question, nor did he object to the answer of the witness, which was read and submitted to the Court and j ury. After plaintiff closed in reply, defendant moved to be permitted to introduce the declarations of H. Moore, formerly ruled out, and the Court refused. That moment the plaintiff introduced the declarations of H. Moore, in relation to the gift, and did not do so inadvertently, hut deliberately, and without recalling the declarations, (M’Kane v. Bonner, before quoted) the defendant had a similar privilege; and it was not the defendant’s interest, nor bis legal obligation to object, but the plaintiff’s, which plaintiff failed to do.
    
      Ground 5th. The evidence, and the law upon that evidence, sustain the 5th ground, on the first division of that ground, and there was evidence to sustain the 2d division, as his Honor Judge Frost’s notes of the evidence, will shew. It is proper to make one explanation. H. Moore, although weak in mind and body, was proved to give reasons for his conduct, which seemed plausible. This is not inconsistent with undue influence. After he had been prevailed on by working on his feelings unduly, and his vanity and other weaknesses, to agree to a particular division of his property, it was natural that he would desire to make that division appear natural and just; and the extreme anxiety he shewed on that subject, is one ground for seriously suspecting his competency. He lelt the more conscious of suspicion, and was guarding against that impression.
    Gregg, contra.
    
    1 st Ground. In Ross on Vendors, 197, in 10 L. Lib., 102, it is laid down, that the property of the goods passes by the delivery of the deed. And so in Noy’s Max., 107, at top, but 89 in margin, it is laid down, “If a deed be made of goods and chattels, and delivered to the use of the donee, the property of the goods and chattels arc in the donee presently.” In Irons v. Smallpiece, 2 Barn. & Aid., 552, C. J. Abbott says, “I am of opinion, that by the law of England, in order to transfer property by gift, there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee.” In Blake v. Jones, Bail. E. Rep., 144, Chancellor Harper says, “In Reid v. Colcock, 1 N. & M’C., 602, and in Fowler v. Stuart, 1 M’C., 503, that seems to bo regarded as a sufficient delivery, which would authorise the donee to take possession without committing a trespass.” In Southworth v. Scbring, 2 Hill, 588, Johnson J., in delivering the opinion of the Court, says, “But the property in chattels may be transferred from one to another in writing, without delivery; the delivery ol the writing being a symbolical delivery of the property.” In Chit. on Com., 51, it is laid dowm, “A gift is not good and binding unless it be by deed, or unless the thing which forms the subject of the gift be actually delivered to the donee.”
    The 2d and 3d grounds are utterly untenable, and need no argument or even explanation.
    
      4th Ground. The case of Sims v. Saunders, Harp. Re., 374, has no application to this case. There the alleged gift was by parol, and the plaintiff had to resort to subsequent declarations of the donor to make it out; and the Court held that the defendant might then do the same thing. In the executors of M’Kane v. Bonner, 1 Bail., 113, Johnson J., in delivering the opinion of the Court, observes, “Cases do sometimes arise, in which proof of the gift is made up of repeated declarations of the donor, running through several years; or such declarations are brought in by the party claiming under it in support of doubtful evidence of the gift; in these and such like cases such declarations are admissible in reply to such evidence.”
    The 5th ground is too vague to need any argument.
   Frost J.

delivered the opinion of the Court.

The first ground for a new trial excepts to the charge of the circuit Judge, that the delivery of a chattel is not necessary to perfect the title of the donee, when the gift is by deed.

According to Noy’s Maxims, 107, “if a deed be made of goods and chattels, and delivered to the use of the donee, the property of the goods and chattels is in the donee presently.” The delivery of the deed is a symbolical delivery of the property. Southworth v. Sebring, 2 Hill, 588. That seems to be a sufficient delivery, which would authorise the donee to take possession without committing a trespass. Reid v. Colcock, 1 N. & M’C., 602; Fowler v. Stewart, 1 M’C., 505.

Even if the deed of gift transferred an exclusive property in the slaves to the wife of John S. Young, this action may be maintained in the name of the husband alone. When the wife has a legal estate in chattels personal, and the right ofimmediate possession, in severalty, the marital rights of the husband will attach and vest the property in him; Sausy v. Gardner, 1 Hill, 192. And it may be considered as a general rule, that the husband may commence proceedings at law, in his own name, for all the personal estate in action which accrued to his wife, or to her and him jointly, during the marriage, and in respect of all personal contracts and covenants made or entered into with them, during that period; 1 Roper’s Husband and Wife, 210; 1 Chitty, PL 74.

The second and third exceptions to the circuit opinion, taken for a new trial, are plainly untenable. A deed would be an idle formality, if, after an unconditional delivery, it might be revoked, or by subsequent declarations of the grantee, he might explain his meaning to have been otherwise; or vary, contradict, or explain the import and operation of the instrument.

The evidence referred to in the fourth ground, was not of declarations of Henry Moore, but merely of his request, at the time the deeds were executed, that the negroes should not be taken away by the parties, but be permitted to remain with him until after christmas. But even without this explanation, the evidence was properly rejected. The established rule is, that after the plaintiff has produced his evidence in reply to the case made by the defendant, the evidence is closed. If the plaintiff is permitted by the defendant to introduce incompetent evidence, he cannot take advantage of his own remissness or design, and require that the case should be opened to give him an opportunity of replying to such evidence. Great mischief and abuse would result from such a practice. The fifth ground of appeal has not been strenuously urged. A deed, which transfers property by the words, “give, convey and deliver,” with a clause of warranty, cannot be construed to be testamentary. And the execution of a will at the same time with deeds, in entire conformity with them, cannot impair their legal effect. The evidence amply supports the verdict, which certainly is not subject to any just exception by the defendant, who, in common with every one of the donee’s children, shared in the partition of his property, claiming their shares under deeds, executed at the same time and similar to the plaintiff’s deed, which the defendant would impeach for fraud.

The motion is dismissed.  