Griffin v. Ranney, 35 Conn. 239; Craig v. Dimock, 47 Ill., 508; Bunker v. Green, 48 Ill. 243; Express Co. v. Haines, 48 Ill. 248. In Patterson v. Gile, 1 Colo. 200, it was held that § 163 was controlling upon the courts of the then territory. The court say: 'As a territory, we derive our political existence, and every political right and privilege that we enjoy, from the general government, and therefore we cannot deny the power of that government to legislate upon this subject in this way, as did the supreme courts of Illinois and Massachusetts. * * We recognize the power of the congress to enact this law, and, according to the 163d section of this act, we will require every instrument to be stamped according to the provisions of the act.' The reason assigned for the conclusion reached in that case has ceased to exist, and we feel at liberty, under present conditions, to follow the rule sanctioned by the weight of authority. Our conclusion is that the absence of a revenue stamp from the deed did not. ipso facto, render it invalid or inadmissible in evidence."

*

Sec. 171. Delivery and acceptance of deeds-General principles. A deed does not take effect until delivered. Fair Haven Marble and M. S. Co. v. Owens, 69 Vt. 246 (37 Atl. Rep. 749). To constitute delivery of a deed, it must have passed beyond the dominion and control of the grantor, with the intention on his part and on the part of the person to whom it is delivered, that it shall presently become operative, and effectual. Walter v. Way, 170 Ill. 96 (48 N. E. Rep. 421). The presumption that a deed is delivered at its date, created by Cal. Civ. Code, § 1055, is not rebutted by proof that the consideration was not paid. Gerke v. Cameron, Cal. (50 Pac. Rep. 434). Acceptance by the grantee is necessary to complete a delivery. Brown v. Brown, 167 Ill. 631 (47 N. E. Rep. 1046). The acceptance, by their father, of a deed to minors, is sufficient, the conveyance being beneficial to them. Rhea v. Bagley, 63 Ark. 374 (38 S. W. Rep. 1039; 36 L. R. A. 86).

Sec. 172. Delivery of deeds-Particular cases. Particular evidence held sufficient to show the delivery of a deed. Harshbarger v. Carroll, 163 Ill. 636 (45 N. E. Rep. 565);

Rodemeier v. Brown, 169 Ill. 347 (48 N. E. Rep. 468; 61 Am. St. Rep. 176). Particular evidence held insufficient to show delivery of a deed. Thornton v. Lawther, 169 Ill. 228 (48 N. E. Rep. 412). Where a father places a son in possession of land which he has conveyed to him by a deed, and the son retains such possession for several years, cultivating the land, paying taxes thereon, and paying the father an annual sum in accordance with the terms of the deed, the heirs of such grantor will be estopped to deny the delivery of the deed, because the grantee never actually had possession of it until after his father's death. Rodemeier v. Brown, 169 Ill. 347 (48 N. E. Rep. 468; 61 Am. St. Rep. 176).

Sec. 173. Delivery by recording-Presumption from grantee's possession of deed. Where there is no evidence to the contrary, the recording of a deed is sufficient to establish the fact of its delivery, Davis v. Pacific Imp. Co., 118 Cal. 45 (50 Pac. Rep. 7); but recording is only prima facie evidence of delivery. Fair Haven Marble & M. S. Co. v. Owens, 69 Vt. 246 (37 Atl. Rep. 749); Babbitt v. Bennett, 68 Minn. 260 (71 N. W. Rep. 22). A recording procured without the consent or authority of the grantor, does not constitute a delivery. O'Connor v. O'Connor, 100 Ia. 476 (69 N. W. Rep. 676). Recording a deed by a grantor does not operate as a delivery to the grantee so as to pass title at that time, where the grantor retains control and possession of both the deed and the land conveyed and it is evident from all the circumstances that neither party to it regarded the deed as delivered. Brown v. Brown, 167 Ill. 631 (47 N. E. Rep. 1046). It is held that where a grantor in a duly executed deed of gift to his natural children, delivered the deed to a deputy clerk of the proper county with instructions to have the same proved by the subscribing witness before the clerk of said. court, who at the time was absent from his office, and to have the same duly registered, that the delivery was complete and could not be defeated by the grantor subsequently changing his mind and recalling the deed, which was destroyed after his death by his executor, although the grantees knew nothing of the deed or of its recall. Robbins v. Rascoe, 120 N. C. 79 (26 S. E. Rep. 807; 58 Am. St. Rep. 774; 38 L. R. A. 238).

Particular cases in which the recording of a deed was held to constitute a delivery. Babbitt v. Bennett, 68 Minn. 260 (71 N. W. Rep. 22). Possession of a duly executed and acknowledged deed by a grantee is presumptive evidence of its delivery Snodgrass v. Knight, 43 W. Va. 294 (27 S. E. Rep. 233). The possession of a deed duly executed and acknowledged is prima facie evidence of its delivery, and one who seeks to rebut this presumption has the burden of Ward v. Ward, 43 W. Va. 1 (26 S. E. Rep. 542).

proof.

Sec. 174. Delivery to third persons. Delivery to a husband for his wife, of a deed executed to her, is sufficient delivery. Pool v. Phillipps, 167 Ill. 432 (47 N. E. Rep. 758.) The delivery of a mortgage to an attorney of the mortgagee who procured its execution, is a good delivery. Jones v. Howard, 99 Ga. 451 (27 S. E. Rep. 765; 59 Am. St. Rep. 231). Where a father, after executing a deed of land to his daughter, delivered it to the officer taking the acknowledgment with instructions to hold it until it was called for by the proper person, of all of which facts she hac knowledge, and she afterwards took possession of the land conveyed, in the life time of her father, it is held that there was sufficient delivery to vest title in her, which was not affected by a subsequent loss of the deed. Appleman v. Appleman, 140 Mo. 309 (41 S. W. Rep. 794; 62 Am. St. Rep. 732). Where a deed is delivered to a third person to be retained until the death of the grantor, and then to be delivered to the grantee, a delivery made by such person to the grantee after the grantor's death is a good delivery. Stout v. Rayl, 146 Ind. 379 (45 N. E. Rep. 515); Shea v. Murphy, 164 Ill. 614 (45 N. E. Rep. 1021; 56 Am. St. Rep. 215). See Ballard's Law Real Prop. Vol. V, § 142. There is no delivery in cases of this character unless the third party takes possession of the deed. Walter v. Way, 170 Ill. 96 (48 N. E. Rep. 421). But he need not actually have the deed in his hands where his possession and control of it are complete and are so recognized by the parties. Rodemeier v. Brown, 169 Ill. 347 (48 N. E. Rep. 468; 61 Am. St. Rep. 176).

Sec. 175. Delivery in escrow. The execution of a deed by a grantor and its delivery to another to be delivered

to the grantee upon his payment of a certain sum of money, does not make the holder of the escrow the agent of the grantee, and where the condition is not performed the title remains in the grantor. Hance v. Swackhamer, N. J. Eq. (36 Atl. Rep. 494). Where a purchase money note and a deed for land are placed in escrow, the latter to be delivered when the note is paid, the holder of the note or his assignee may waive the condition and allow the deed to be delivered. Smith v. Goodrich, 167 Ill. 46 (47 N. E. Rep. 316). Where a delivery is made upon condition that the deed is to be effective when the title is approved by the grantee's attorney, such condition is for the benefit of the grantee and is waived by his recording the deed. Hendricks v. Edmiston, 15 Wash. 687 (47 Pac. Rep. 29). Where one holding a deed in escrow delivers it to the grantee before his performance of the conditions entitling him to receive the deed, one taking a mortgage from him in good faith will be protected against his grantor's title. Shurtz v. Colvin, 55 0. St. 274 (45 N. E. Rep. 527). When the condition on which an original delivery made in the life time of a party transpires, the conditional delivery becomes absolute, and the absolute delivery takes effect against the contracting parties from the date of the delivery of the contracts as escrows, notwithstanding the death of one of the contractors before the happening of the condition. Davis v. Clark, 58 Kan. 100 (48 Pac. Rep. 563). Citing, Bostwick v. McEvoy, 62 Cal. 499.

Sec. 176. Surrender and cancellation of deeds. Although title once passed by a delivered deed can not be divested by its destruction, it is held that changes in the manner of vesting the title may be made by substituted conveyances from the grantor without any previous reconveyance to him. Coleman v. Reynolds, 181 Pa. St. 317 (37 Atl. Rep. 543). In the recent case of Slaughter v. Bernards, 97 Wis. 184 (72 N. W. Rep. 977), the supreme court of Wisconsin say: "In some jurisdictions the surrender and cancellation of an unrecorded deed, with intent to revest the title in the vendor, is given that effect by applying the doctrine of estoppel. Mussey v. Holt, 24 N. H. 248 (55 Am. Dec. 234); Farrar

v. Farrar, 4 N. H. 191 (17 Am. Dec. 410). But the rule is the other way in this state, Parker v. Kane, 4 Wis. 1 (65 Am. Dec. 283); Albright v. Albright, 70 Wis. 528 (36 N. W. Rep. 254); Rogers v. Rogers, 53 Wis. 36 (10 N. W. Rep. 2; 40 Am. Rep. 756); which are in accord with the great weight of authority in this country and England. Walker v. Renfro, 26 Tex. 142; Bailey's Adm'rs v. Campbell, 82 Ala. 342 (2 So. Rep 646); Jeffers v. Philo, 35 O. St. 173; Killey v. Wilson, 33 Cal. 690; Somers v. Pumphrey, 24 Ind. 240; Potter v. Adams, 125 Mo. 118 (28 S. W. Rep. 490); 46 Am. St. Rep. 478); Hyne v. Osborn, 62 Mich. 235 (28 N. W. Rep. 821); Roe v. Archbishop of York, 6 East 86. In Cranmer v. Porter, 41 Cal. 462, the law governing the subject is stated thus: 'It is a familiar rule of law that the destruction or cancellation of a deed, after delivery, even though it be done with the consent of all the parties to it, and for the express purpose of restoring the title to the grantor, cannot work that result.'

Sec. 177.

Construction of deeds. Where a deed purports to convey the fee to the land described, it will not be held to convey a less estate on account of recitals in the certificate of acknowledgment. Garrett v. Weinberg, 48 S. C. 28 (26 S. E. Rep. 3). Where several deeds are executed at the same time, relate to the same subject matter, and are a part of the same transaction, they must be construed together. Leach v. Rains, 149 Ind. 152 (48 N. E. Rep. 858). A deed of "a parcel of land for the purposes of a road" conveys only an easement. Wason v. Pilz, 31 Or. 9 (48 Pac. Rep. 701). Citing, Robinson v. Railroad Co., 59 Vt. 426 (10 Atl. Rep. 522). While it is a general rule that the construction of a written instrument is a question of law for the court, yet where its interpretation depends upon the sense in which the words were used, or depends upon facts aliunde, in connection with the written language, to ascertain the intent of the parties, the question becomes a mixed question of law and fact. Trustees of Town of Easthampton v. Vail, 151 N. Y. 463 (45 N. E. Rep. 1030). A conditional limitation in a conveyance of a fee simple estate, to the effect that if the grantee shall die without issue or their descendants living at the time