I feel constrained to dissent from the opinion of the Court expressed on one point in this case.
Did I view the case in the light in which it is viewed by my brethren, my opinion would accord with theirs. They deem the testimony offered by the plaintiffs of the manner in which the defendant procured the deed of the 27th of June, 1826, as wholly irrelevant, because they suppose that there was no pretence of a delivery of the deed until months afterwards; and therefore, that the testimony tending to show, that the defendant obtained the deed tortiously, by breaking open the trunk of the grantor, could have no other effect than to prejudice the minds of the jury; and that this effect would be improper. Doubtless, had those facts so appeared, the result would have been correct; but, in my judgment, a different case is presented by the motion.
*45It seems, the defendant, relied upon his deed of the 27th of June, 1826. That deed was introduced by him; and by that deed, if it had been valid, the defendant would have gained a title, which would have prevailed against the plaintiffs, the heir at law of the grantor. The questions were two, viz: 1st, was the deed in question ever delivered? And if so, 2ndly, was the grantor of sufficient capacity to make and deliver the deed?
It does not appear, that when the plaintiffs offered the proof of the tortious taking of the deed, by the defendant, and of the grantor’s declaration to him, “to put the deed back again, and not to meddle with it,” that it was admitted by the parties, that the deed was not delivered until several weeks afterwards. The state of things then presented, was a deed of the land in question in the hands of the defendant, which would defeat the title of the plaintiffs. There was no question, it seems, respecting the authentication of the instrument; but the only point here was as to its delivery. The testimony of the manner in which the deed was obtained, was not only proper, but, if believed, was conclusive, to prove, that nothing could be claimed by the defendant under such a possession of the deed. It proved, that it had not been previously delivered; for it was taken from the trunk of the grantor tortiously. It proved also, that it was not then delivered; for the grantor told the grantee “to return it, and not to meddle with it any more.” If the fact, afterwards, in the course of the trial, appeared, which seems now the basis of the opinion of the Court, viz. that it was agreed by the parties, that the deed was not delivered until weeks had elapsed, it might, very properly, have been the subject of the animadversion of the judge on the testimony; but I cannot perceive how it could shew it inadmissible in a previous stage of the trial. I would, therefore, disallow the motion.
Williams, J. gave no opinion, having been of counsel in the cause.New trial to be granted.