If there is any evidence of a delivery of the deed to Haney for the defendant, the ruling of his Honor is erroneous, and the case of Weaver v. Weaver, 159 N. C., 18, would be decisive in favor of the contention of the plaintiffs that there. is no such evidence, if the paper-writing executed after the deed was signed, by which the control of the deed remained with the grantor, had been incorporated in the deed, -or had passed from the grantor at the same time with the deed.
It was held in the Weaver case that there is no delivery if the grantor reserves the right of recall, although the deed is placed in possession of a third person, to be delivered to the grantee at the death of the grantor, if not recalled; but the Court also quoted with approval from Tarlton v. Griggs, 131 N. C., 216, that, “There must be an intention of the grantor to pass the deed from his possession and beyond his control, and *213be must actually do so, witb tbe intent tbat it shall be taken by grantee or some one for him. Both the intent and the act are necessary to the valid delivery. "Whether such existed is a question of fact to be found by the .jury.”
The Court also approved Fortune v. Hunt, 149 N. C., 360, where it is said: “When the maker of a deed delivers it to some third party for the grantee, parting with the possession of it, without any condition or any direction to 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.”
These authorities establish the following propositions:
(1) If the deed is given to a third person for the grantee, and the grantor retains control of it and the right to recall it, there is no delivery.
(2)' If the deed is given to a third person for the benefit of the grantee and the grantor retains no control over it.and no right to recall it, there is a delivery.
(3) If the deed is once delivered, without the reservation of any control over it, the grantor cannot by any subsequent act of his defeat the rights of the grantee.
(4) That the controlling test of delivery is the intention of the grantor to part with the deed and put it beyond his control, and that this intent is 'an issue of fact, to be passed on by a jury.
Applying these principles, we are of opinion, not that the deed has been delivered, but that there is evidence of delivery which should be considered by a jury.
The grantor told Haney the day before the deed was signed that he wanted to sign a- deed to the defendant and place it in hiá (Haney’s) hands as an escrow; on the next day, after signing the deed, he pushed or threw it across the table and said there i't was, and Haney took it, folded it, and placed it under an inkstand, and in the paper executed one hour and a half later he recites that he “did execute and deliver” the deed. It also *214appears from tbe evidence that after the deed was signed and given to Haney, the grantor talked an hour and a.half about the history of his life before the right to retain control of the deed was suggested or considered.
If the jury find upon this evidence that the grantor parted with the possession of the deed, intending at the time to surrender all power or control over it, there has been a delivery, which could not be affected by the execution of the paper thereafter.
On the other hand, if the grantor did not part with the possession of the deed until after the second paper was signed, and it was left on the table while he and Haney were discussing his history and what was best to be done, or if it was not the intention of the grantor at the time he pushed or threw the deed to Haney to part with its possession and. control, then there is no delivery.
' These are questions- for the jury, and to the end that they may be considered, a trial before a jury is ordered.
Reversed.