
    Willard F. Barnes vs. Alice L. Barnes.
    Suffolk.
    January 23, 1894.
    May 18, 1894.
    Present: Field, C. J., Allen, Morton, & Barker, JJ.
    
      Delivery of Deed — Cloud on Title.
    
    On a bill in equity filed for the cancellation of a deed, it appeared that the plaintiff signed and sealed a deed purporting to convey a parcel of land to the defendant, and caused it to be recorded. He then received it back, but did not hold it as the agent or guardian of the defendant or on his behalf. It never was in the possession of the defendant or of any one representing him, and the plaintiff, on request, refused to surrender it. Before such request, but after he had received it back from the registry, he communicated its existence to the defendant, and spoke to him of the land described in it as his, as he then supposed it was. The defendant assented to the transaction so far as he could when told of it. When the plaintiff had the deed recorded, he meant to pass the title to the defendant, and supposed he was doing so, but throughout he kept possession of the land. Held, that the deed was never delivered, or became operative, and that the plaintiff was entitled to a decree.
    Bill in equity, filed November 25, 1892, for the cancellation of a deed alleged not to have been delivered to the defendant, and constituting an alleged cloud on the title of the plaintiff.
    Hearing before Holmes, J., who entered a decree for the plaintiff, and, at the request of the defendant, reported the case for the consideration of the full court, in substance as follows.
    The plaintiff, on June 2, 1883, signed and sealed a deed purporting to convey a parcel of land in Boston to the defendant, and caused it to be recorded. He then received it back, and it never was in the possession of the defendant or of any one representing her. The plaintiff never held the deed as the agent or guardian of the defendant or on her behalf, and, when requested by her counsel to surrender the deed, refused so to do. Before such request, but long after he had received the deed back from the registry, he communicated the existence of the deed to the defendant, and spoke to her of the land described in it as hers, as he then supposed it was. The defendant assented so far as she could to the transaction when it was communicated to her. When the plaintiff had the deed recorded he meant to pass the title to the defendant, and supposed that he was doing so. Throughout the transaction he kept possession' of the land.
    
      J. Prentiss & O. R. Mitchell, for the defendant.
    1. The effect of a manual delivery is in all cases a question of the intent with which the act is done.
    (a) If there, is no intent, no act can amount to a delivery. Maynard v. Maynard, 10 Mass. 456. Mills v. Gore, 20 Pick. 28. Hawkes v. Pike, 105 Mass. 560. Wall v. Hickey, 112 Mass. 171. Shurtleff v. Francis, 118 Mass. 154. Hale v. Joslin, 134 Mass. 310. Johnson v. Baker, 4 B. & A. 440. Gudgen v. Besset, 6 El. & Bl. 986. Parker v. Dustin, 22 N. H. 424. Taft v. Taft, 59 Mich. 185.
    (5) If there is an intent and an act, the title passes presently. Shaw v. Hayward, 7 Cush. 170. Garnons v. Knight, 5 B. & C. 671. Church v. Gilman, 15 Wend. 656. Commercial Bank v. Reckless, 1 Halst. Ch. 430. Blight v. Schenck, 10 Penn. St. 285. Alexander v. Alexander, 16 Reporter, 329. Moore v. Giles, 49 Conn. 570. Glaze v. Three Rivers Farmers' Ins. Co. 87 Mich. 349.
    In those jurisdictions where assent of the grantee to receive the benefit offered to him is held to be requisite, a delivery to a third person with intent to pass title has been held good in the following cases.
    The grantee having assented before execution; Hedge v. Drew, 12 Pick. 141; Church v. Gilman, 15 Wend. 656; or where the grantee knew of the delivery; Wheelwright v. Wheelwright, 2 Mass. 447; Hall v. Harris, 5 Ired. Eq. 303 ; or where the grantee subsequently assented; Harrison v. Phillips Academy, 12 Mass. 456, 461; Marsh v. Austin, 1 Allen, 235; Cowell v. Daggett, 97 Mass. 434.
    There is no distinction. to be drawn between delivery to a register of deeds in its operation upon the title, the other requisites being present, and delivery to any other third person. Hedge v. Drew, 12 Pick. 141. Mitchell v. Ryan, 3 Ohio St. 377.
    2. If there is an intent and words to indicate it, the actual performance of any particular act is unnecessary. Moore v. Hazelton, 9 Allen, 102. Regan v. Howe, 121 Mass. 424. Snow 
      v. Orleans, 126 Mass. 453. Garnons v. Knight, 5 B. & C. 671. Exton v. Scott, 6 Sim. 31. Lloyd v. Bennett, 8 C. & P. 124. Xenos v. Wickham, L. R. 2 H. L. 296. Jones v. Swayze, 13 Vroom, 279. Ruckman v. Ruckman, 5 Stew. 259. Toms v. Owen, 52 Fed. Rep. 417. Scrugham v. Wood, 15 Wend. 545.
    Where a delivery of a deed to a register of deeds with intent to pass title is found as a fact in the lower court, the question whether there has been a valid delivery is not open in an appellate court. Hedge v. Drew, 12 Pick. 141. Moore v. Giles, 49 Conn. 570. Alexander v. Alexander, 16 Reporter, 329. Glaze v. Three Rivers Farmers’ Ins. Co. 87 Mich. 349.
    
      E. H. Savary, for the plaintiff.
   Morton, J.

It is expressly found in the report that the plaintiff never held the deed as the agent or guardian of the defendant, or on her behalf, and that it never has been in her possession or in that of any one representing her. The plaintiff has always kept possession of the land, and has always had actual possession of the deed, except when it was at the registry. There is no finding that, when he carried the deed to be recorded, he delivered it to the register as the agent of or on behalf of the defendant, or for her use, or to be transmitted to her. It is not found what the consideration was, nor that there was any. When the plaintiff had the deed recorded, he meant to pass the title to the defendant, and supposed that he had done so, but he did no act except to make and execute the deed, and cause it to be recorded. Long after he had received it back he communicated its existence to the defendant, and spoke of the land as hers, as he supposed it was, but he did not then, or at any time, say that he was holding the deed for her, or would give it to her. She assented to the transaction, so far as she could, when told of it.

It is well settled in this State that the leaving of a deed by the grantor with the register for record, and the recording of it by the register, do not constitute a delivery. Maynard v. Maynard, 10 Mass. 456. Samson v. Thornton, 3 Met. 275. Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, 231. Hawkes v. Pike, 105 Mass. 560. Commonwealth v. Cutler, 153 Mass. 252. Parrott v. Avery, 159 Mass. 594. All that this case adds is the unexpressed intention on the part of the grantor when he had the deed recorded, to pass the title to the defendant. In order to render that intention effectual he should have manifested by some act or declaration his purpose that what took place should be regarded as a delivery to or for the grantee.- Otherwise one might convey land by executing and recording a deed with intent to pass the title without any delivery of the deed by which the transfer is effected. If the question were a new one there would perhaps be nothing difficult or impracticable in the conception that the act of leaving a deed with the register for record by the grantor with the intent on his part thereby to vest the title in the grantee should constitute the register the agent for delivery of the grantee, and that upon the assent of the grantee the transaction should take effect as a valid delivery. But we think the law is otherwise in this State, and that the ruling of the presiding justice was correct, and that the plaintiff is entitled to a decree. Decree accordingly.  