The case has been reduced to a single question, whether the deed from Jones to Bush et al, was delivered so as to take effect as Jones' deed.
On this question we charge as follows, leaving the jury to apply the principles to the facts as they shall find them; and if they have difficulty in applying the principles, they may find the facts in writing in the form of a special verdict, to which the court will apply the law.
Where a party to any instrument seals it and declares in the presence of a witness, that he delivers it as his deed, acknowledges and records it, but keeps it in his own possession; and there isnothing to qualify the delivery but the keeping the deed in the hands of the executing party, nothing to show he did not intend it to operate immediately; it is a valid and effectual deed, and delivery to the party who is to take by it, or to any person for his use, is not essential.
But if at the time of the formal execution and delivery, the grantor directed it to be recorded and returned to him with an intention then avowed to set it up as a deed, and actually to deliver it, only in some future contingency, which never occurs; and there never has been an actual delivery, but the paper remained in the custody of the grantor till his death; there the delivery is not sufficient to make it a valid deed. A mere formal declaration of delivery may always be explained by the intention of the grantor as avowed at the time of execution. The acknowledgement of a deed before a judge is not conclusive evidence of the delivery; nor is the fact of recording a deed conclusive evidence of the delivery. In such cases, the question of delivery may still be controverted before a jury. We concur on this subject with the Supreme Court of Massachusetts in Maynard vs. Maynard, 10Mass. Rep. 458. Whether a creditor of the real grantees in a recorded deed might not have taken it in execution for debt, in consequence of the credit given by putting such an apparent title upon record, need not now be determined. Comyn, 531;Strange, 1109; Willes Rep. 1; 12 Eng. Com. Law. Rep. 251.
The jury rendered a verdict for the plaintiff, when there arose a question as to the mode of entering the verdict.
The Court said, the practice had been to enter the verdict generally *Page 509 for the plaintiff; or that the defendants were guilty of the trespass and ejectment complained of; and then the plaintiff issued his habere facias at his peril; or, if they could agree on the share, they might enter the verdict specially. The demise was general, and the lessors of plaintiff were entitled to only a part of the lands, as tenants in common with the other grand-children of Isaac Jones.
The verdict was taken thus: — "We find that the defendants are guilty of the trespass and ejectment within laid to their charge, in manner and form as within complained against them, as to one sixthpart of the lands, tenements and premises; and assess damages at six cents, and six cents costs, besides the costs expended."