Opinion by
Mr. Justice Mitchell,The learned judge below directed the verdict for the defendants, and there is no claim that there was any material question of fact in dispute which required submission to the jury. Both sides having agreed that the issue was one of law for the court, the only question before us is whether the court decided it rightly.
Of this we entertain no doubt. The plaintiffs’ own case showed that they had no title. They claimed under a deed from Samuel Tate, made in July, 1846, and this deed showed of itself that the grantor had at that time no estate in the land to convey. It recites that whereas the grantor being seized, etc., and being desirous to convey, etc., “did on the 27th day of February last past seal and deliver to the said Martha L. Tate a deed therefor in fee,” and whereas the said parties had been advised, etc., “wherefore the said deed of conveyance has been by the consent of the said parties withdrawn, annulled and cancelled,” and thereupon it proceeds to convey the same land to a trustee upon a separate use trust for the said Martha L. Tate, with contingent remainders over to her husband and children, etc., under which it must be conceded that the plaintiffs would have a good title if their ancestor was then seized of *557the land. Bnt as already said his own recital shows that he had previously parted with all his estate. He had sealed and delivered a deed in fee to his daughter-in-law Martha, and the estate had therefore vested in her. An estate once vested cannot be divested by the mere annulment and cancellation of the deed. That as was well said by the learned judge below was but the destruction of the evidence of the title, not the annulment of the title itself. No title can be divested by a mere recital in a deed, or by any form of deed to which the holder of the title is not a party. A fortiori is this the case where the title sought to be divested is in a married woman and can only be conveyed in accordance with the prescribed statutory forms.
The appellant argues that the deed was not accepted, and that the recital shows that the delivery must have been for examination, and the subsequent grant indicates that there was no acceptance. But the words used by the grantor are “ did seal and deliver,” and delivery implies acceptance. There may be delivery in escrow, and there may be transfer of manual possession for examination or other purposes, but without acceptance there is merely a tender. Delivery implies both tender and acceptance, and there is nothing in this case to support any other than the ordinary construction of the word.
The appellant further argues that the deed of February, 1846, not having been recorded cannot prevail against the later deed which was duly put on record. But the grantee in the later deed was not a bona fide purchaser without notice. It is doubtful if in equity he could be treated as anything more than a volunteer, but in any case he took with notice in his deed itself, that his' grantor, as against the prior conveyance, had no estate to convey.
It is further argued that Martha L. Tate’s deed to Clement was only a conveyance of her title under the trust deed of July, 1846, and therefore Clement took no more than an estate for her fife. But this is a misreading of the deed. It is a conveyance to Clement, his heirs and assigns, of all the grantors’ estate, right, title, etc., with special warranty, and the only reference to the deed of July, 1846, is in the description of the property as part of the land described in that deed. The granting portions of the deed to Clement passed all the estate of the grantors *558whatever it was, and whencesoever derived, and the grant cannot be diminished by a mere recital in the description.
So far we have considered the case solely as it was presented by the plaintiffs. But when we turn to the defendant’s side we find the uncontradicted testimony of Col. J. W. Tate, that Martha took possession of this land in April, 1846, after the conveyance to her and before the conveyance to Black as trustee. And she retained the possession except of the portion she sold until she died in 1893. In addition therefore to the presumptions from the recital in the deed of July, 1846, she is thus shown to have been a grantee in actual possession when that deed was made to Black, and her possession was notice to him of her title.
There is no doubt that the result thus arrived at defeats the intentions of Samuel Tate if they are to be gathered strictly from the language of his deed. And it may be that it defeats also the intentions of Martha L. Tate as they may be inferred-from her failure to take any active steps to set aside the trust. But the latter is by no means clear. If we are to draw inferences as to her actual intentions it is hardly open to question that she regarded herself the tenant for life and her son the remainder-man as jointly owning the entire fee, and intending to convey it to Clement. They were probably not informed as to the subject of contingent remainders, and did not contemplate the contingency of her surviving her son. But the case cannot be decided on inference or conjecture as to actual intentions. The evidence shows that the legal title and possession were in Martha Tate; there is no evidence that would enable the court to say that the title ever passed out of her by her own act; and it could not be taken out of her by the act of any other person.
Judgment affirmed.