concurring: This is a petition to rehear this cause, reported 170 N. C., 110. The object of the action is to convert the defendant, the Juniper Company, into a trustee of one-half the land for plaintiff’s benefit and for a division. At the conclusion of plaintiff’s evidence and again at the conclusion of all the evidence defendant moved to nonsuit, which motion was overruled, and defendant excepted.
I am of opinion that the motion should have been allowed, and that plaintiff is not entitled to a judgment in any view of the evidence.
C. R. Johnson, introduced as a witness by plaintiff, testified that he purchased the land in 1895 for plaintiff and himself, and that plaintiff paid half the purchase money; that by agreement with ’ plaintiff the title to the entire tract was made to Johnson, who agreed to ’hold it in trust for plaintiff and himself in equal interest. Witness further testifies:
“Shortly after I purchased this land in 1895, and within four or five years thereafter, I made, executed, and acknowledged a deed conveying a half interest in the same to the plaintiff Lynch. I placed this deed, in a stamped envelope with my return address on it, in the post-office, directing the same to the plaintiff. Mr. Lynch told me after^ wards that he did not receive this deed. I was adjudged a bankrupt in the District Court of Virginia in 1911. The property described in this action was sold on 4 May, 1914. I did not tell Mr. Davis or any one- else that Mr. Lynch claimed an interest in the same. After the sale was made, I asserted a right of dower in the entire tract on behalf of my wife, and I executed with her a deed to the Juniper Corporation, releasing her right of dower in the same. The deed which I mailed to Lynch bore my return address. The deed was never returned to me. I have not seen the same since I mailed it.”
Johnson was adjudged a bankrupt, and on 4 May, 1914, his trustee duly sold and conveyed the entire tract to defendant, the Juniper Company. The jury have found that Johnson held the land in trust for plaintiff and himself and that plaintiff gave notice at the sale, and that said defendant thus had actual notice of plaintiff’s alleged equity.
Plaintiff testified: “Johnson told me some time ago that he had executed a deed to me for a half interest in this land; that the same had been mailed to me. I never received this deed.”
*620This evidence was all introduced by plaintiff, and there is nothing tending to contradict or qualify it. I am of opinion that the nonsuit should have been allowed because, according to the uncontradicted evidence offered by plaintiff, he has no equitable title to half the land resting in Johnson or the Juniper Company, as both legal and equitable title had been conveyed to plaintiff by Johnson by deed duly executed and delivered long before this action was brought or the Juniper Company acquired any title. There is no finding by the jury upon this phase of the evidence, but I think defendant can get the benefit of it under the motion to nonsuit, because the burden of proof is on plaintiff to show that at the commencement of his action the Juniper Company held the legal title to half the land in trust for the plaintiff. That it did not hold it is proven by plaintiff’s own evidence. The legal and equitable title to half the land passed out of Johnson and vested in plaintiff by the deed which his own witness, Johnson, testified he executed and mailed to him. That same witness who proved the plaintiff’s equitable title to the land also proved that such equity had passed along with the legal title by deed to plaintiff. Consequently there is no trust estate in the Juniper Company for the decree of the Court to operate upon.
In order to constitute a delivery of the deed, it is not necessary that plaintiff should have received it. When Johnson deposited the deed in the postoflice he parted with all control over it and could not recall it. The title thereby became vested in plaintiff, although he may not have received it. This Court has held that “when the maker of a deed delivers it to some third person for the grantee, parting with the possession of it, without any condition or any direction as to how he shall hold it for him, and without in some way reserving the right to repossess it, the delivery is complete and the title passes at once, although the grantee may be ignorant of the facts, and no subsequent act of the grantor or any one else can defeat the effect of such delivery.” Fortune v. Hunt, 149 N. C., 358.
This case cites many authorities and is itself cited with approval by Justice Walker in Buchanan v. Clark, 164 N. C., 63, and by Justice Allen in Huddleston v. Hardy, 164 N. C., 213. Chief Justice Henderson defines the delivery of a deed to be “a parting with the possession of it by the grantor in such a manner as to deprive him of a right to recall it,” and further says: “A delivery of a deed is in fact its tradition from the maker to the person to whom it is made, or to some person for his use, for his acceptance is presumed until the contrary is shown. It being for his interest, the presumption is, not that he will accept it, but that he does." Kirk v. Turner, 16 N. C., 14. “When the deed is beneficial to the grantee, the acceptance of the grant is presumed.” Arnegaard v. Arnegaard, 75 N. W., 797.
*621In considering whether the consent of a grantee to accept and receive the deed is necessary it must be borne in mind that it is not the ordinary purchase and sale of land in which the grantee must be consulted; such is not the case. This is a case where the trustee of an express trust, who admits that he holds the land of a grantee, is endeavoring to get rid of his trust and convey the legal title to the person who in equity owns the land. As this was a pure unmixed trust, in my opinion, the trustee had a right to rid himself of the legal title by executing a deed to the cestui que trust, whether the latter consented or not. It is not necessary to show acceptance upon the part of this particular grantee, because he was the cestui que trust and already owned the land.
It is well settled that it is not essential to the immediate operation of a deed that it be placed directly in the hand of the grantee. It is essential, as well as indispensable to its effect, that the grantor should part with it and all control over it by putting it into a course of transmission or delivery. McKinney v. Rhoads, 45 Pa. (Watts), 343.
In that case it is held, in an opinion by so great a judge as John Bannister Gibson, that “the deposit of a deed in the postoffi.ce directed to the grantee is equally availing for that purpose as a delivery of it to a messenger.” In the opinion he further says: “The assent of the assignee (grantee) may be anticipated as it was in Smith v. The Bank of Washington, 5 Serg. and Rawle, 318.”
In McLean v. Nelson, 46 N. C., 397, it is held that “Where a deed is delivered to a third person in the absence of the grantee, the latter is presumed to accept it, and it forthwith becomes effectual to pass the property included in it.” To same effect is Merrills v. Swift, 18 Conn., 257.
It is contended that the deposit in the postoffice raises only a presumption that the deed reached the addressee (grantee), and that such a presumption may be rebutted. The case of Sherrod v. Ins. Assn., 139 N. C., 169, is relied on to sustain this position. In my opinion, that case has no application here. I admit that where a letter is duly mailed a presumption arises that the addressee received it, and that the addressee may rebut such presumption by showing that in fact he did not receive it. In that case it was necessary that the addressee should have received the letter. In this case there is no presumption of delivery to the addressee to rebut. It is not necessary that the grantee should have received the deed. Its delivery was complete when the grantor, Johnson, parted with all control over it by mailing it to the plaintiff, the grantee. When Johnson deposited it in the postoffice, stamped and addressed to the plaintiff, it had the same force and effect as if he had sent it by a special messenger. If the messenger lost it, the delivery to the grantee was nevertheless complete.
*622But it is contended that there is no finding of fact that Johnson did mail the deed to plaintiff. It is not necessary that there should be. That fact was proven by plaintiffs witness and was in evidence when the motion to nonsuit was made at close of plaintiff’s evidence as well as when the motion was renewed.
When Johnson, plaintiff’s witness, testified that he held the legal estate subject to plaintiff’s equity, he at the same time testified that he had parted with both legal and equitable estate by mailing the deed to plaintiff. The latter cannot take the benefit of one-half of Johnson’s statement and discard the other half.
I am of opinion that at commencement of this action plaintiff was holding his interest in the land not by virtue of a resulting trust or other equity by virtue of the deed Johnson had made him. It was his duty, when he was informed of the fact that Johnson had mailed him a deed, to procure another from Johnson and put it on record, or commence proceedings to establish his lost deed, which from their inception would operate as a Us pendens. Having failed to do either, I am of opinion that no verbal notice, however full, prevented the purchaser from acquiring the land discharged of the alleged equity. With entire deference for the opinion of others, to hold otherwise upon the facts of this case, as testified to by plaintiff and his witnesses, would, in my opinion, practically nullify the registration laws of this State. I think the petition to rehear is properly dismissed.