The opinion of the court was delivered, by
Read, J.In the opinion delivered by the Chief Justice on the •23d of January 1866 (1P. F. Smith 282), on the former hearing of this case, it was held that the present defendants were the grantees in the deed executed by their grandfather, Andrew Lantz, Sr. This question which has been reargued on the present hearing, we shall not reopen, as we consider it settled by the unanimous opinion of the court, which after full reflection we believe to be perfectly correct, and is certainly in strict conformity to the real justice of the case.
There is strong confirmation of the view taken by this court in the late case of Reeves v. Watts, 1 Law Rep. Q. B. 412, where it was held that an indenture between the defendant of the first part, and all the creditors of the said defendant of the second part, was valid, and any one of the creditors could take advantage of a covenant in it. Mr. Justice Blackburn said, “ My own opinion was strongly in favor of the proposition, that a person may be made a party to a deed inter partes, by description as belonging to the defined class ; on the principle, id eertum est quod eertum reddi potest; and this view is much strengthened by the case of Maughan v. Sharpe, and particularly by the judgment of that learned judge Sir E. V. Williams.” In that case, which is reported in 34 L. J. C. P. 19, Mr. Justice Williams said, p. 24, “ With respect to the deed assigning the goods from Dolby to the defendants, it is said it is inoperative, because of the necessity to name a grantee to enable the deed to have an operation. I apprehend, however, that it is settled, a grant may be good, though the grantee be not named by his Christian name or surname. In Shep. Touch. 236, after stating the consequences of a mistake in the Christian name or surname, it is stated, ‘ And yet if the grant do not intend to describe the grantee by his known name, but by *26some other matter, then it may he good by a certain description of the person without surname or name of baptismand it is added, id cerium est quod cerium reddi potest. I am of opinion that the meaning of the grant in this deed, is to convey the goods to the persons using the style and name of the City Investment and Advance Company. They may or may not be a corporation; but when it has been ascertained that the persons answering to that description are the defendants, the grant operates accordingly to convey the property to them.”
The only question open, therefore, is whether there was such a delivery of the deeds as to vest the title in the grantees. We are to recollect that the consideration of natural love and affection is amply sufficient in this case, the dispute being only between the children and grandchildren of the decedent, and the deeds being a substitute for a will, so as to avoid the claim of the widow in case of a second marriage, which was in contemplation at the time, and actually did take place afterwards.
In O’Kelly v. O’Kelly, 8 Metc. 486, Chief Justice Shaw says: “ That a deed was made, executed and acknowledged by the ancestor, was proved. The question was, whether it was delivered so as to take effect and pass the estate. If it was delivered by the grantor to any person in his lifetime, to be delivered to the grantee after his decease, it was a good delivery, upon the happening of the contingency, and relates back so .as to divest the title of the grantor by relation from the first delivery: Foster v. Mansfield, 3 Metc. 412.”
This is the case before us. The uncontradicted testimony of Joseph L. McConnell proves this: “He gave me directions what to do with the deeds in the box. My directions were, that after his death I was to hand the deeds over to the persons to whom they were made” — “ If Andrew’s children were not of age when he died, or any of them, I was to see the deeds should be recorded, so that no advantage should be taken of the younger children”— “ A few days after the old man’s death I went with A. Lantz, Jr., into the recorder’s office, had the deeds with me, and handed them over to the proper officer to be recorded; and the other deeds I gave over to the grantees, who were capable, or to their agent in the presence of the grantees. I saw the deeds after-wards (to Lantz’s children) in the possession of Mr. Huss, son-in-law of A. Lantz, Jr.”
The jury found that the power to McConnell was never recalled or revoked by the decedent. The statement above, therefore, correctly represents the facts, and upon them it is clear the delivery was perfect.
The points submitted to the court do not arise out of the evidence, for there was no testimony showing the decedent retained *27the right to recall the deeds at pleasure, and of course the answers of the court would be immaterial, and the court might hare refused to answer them. But we think the ruling of the court is sustained in any aspect by the cases of Wheelwright v. Wheelwright, 2 Mass. 447, decided by Chief Justice Parsons, and Hatch v. Hatch, 9 Mass. 807, where the doctrine is fully explained and extended so as to cover a case like the present.
There is nothing in the error assigned to the rejection of evidence ; and as it is clear that there was a good delivery of the deed upon the happening of the event, the death of the decedent,
The judgment is affirmed.