This is a writ of entry. The plaintiff, whose name is Melissa A. Andrews, claims title to the demanded premises by virtue of a deed from James Andrews, her husband, to Mercy A. Andrews, dated July 3, 1875.
The defendants claim the possession of the premises under a lease from James Andrews.
The plaintiff' claims that the discrepancy in the name of the *430grantee in the deed, arose from a mistake made when the deed was written, that she is, in fact, the grantee, and that it was delivered to her, as the grantee, by the grantor.
On the other hand, the defendants claim that James Andrews did not intend to convey to the plaintilf, that the difference in the name was intentional on his part, and that he never delivered the deed to her to take effect as his deed to her. There was evidence tending to support the position of each side.
On this point the court instructed the jury as follows : "Now was the deed made to her and delivered to her as her deed ? She has it and produces it here, and the presumption, therefore is, that it was delivered to her.”
We think this was error. True, it is well settled, that, in the absence of any evidence or circumstances to the contrary, the production of the deed by the grantee is prima facie evidence of its delivery. 2 Green. Ev. § 297 ; Maynard v. Maynard, 10 Mass. 456; Hatch v. Haskins, 17 Maine, 391.
But this rule prevails only when the deed is produced by the grantee. Here, by the deed alone, the plaintiff does not appear to be the grantee. It can only be made to appear that she is by evidence aliunde. The rule given to the jury by the court, required them to find that the deed was delivered to the plaintiff, as her deed, without evidence, identifying her as the grantee. If the instruction had required the jury to find that she was, in fact, the grantee, before they could infer a delivery to her from the production of the deed by her, it would have been correct, but to make out a prima facie case she was required only to produce and put in evidence the deed from James Andrews to Mercy A. Andrews. This was, undoubtedly an inadvertence of the presiding justice, but it was calculated to mislead the jury. We know of no authority to sustain it.
Exceptions sustained.
Peters, C. J., Danforth, Virgin, Foster and Haskell, JJ., concurred.