Scrugham vs. Wood, 15 Wend. 545

By the Court, Nelson, J. The facts in the bill of exceptions are abundantly sufficient to justify the charge of the court below, and the verdict of the jury. No one can doubt} from the account of the execution of the deed given by the commissioner, in connection with the previous preparation of it at the instance of Scrugham, that it was the understanding and intent' of all parties at the time of the execution and acknowledgment, that it was delivered, or in other words, that the family settlement was complete.

The position to be found in the learned commentaries of Chancellor Kent, 4th vol. 455, 6, that “ if both parties be present, and the usual formalities of execution take place, and the contract is to all appearance consummated without any conditions or qualifications annexed, it is a complete and valid deed, notwithstanding it be left in the custody of the grant- or,” is amply sustained by the authorities referred to by him. He had, in the case of Souverbye v. Arden, 1 Johns. Ch.

R. 240, before fully considered and reviewed all the leading cases on the point, both in law and equity, and in the opinion delivered by him as chanceller, the above proposition will also be found, p. 256. It has received confirmation by subr sequent cases, both here and in the English courts. 17 Johns. R. 548, 577. 5 Barn. & Cres. 671.

The position extracted by the reporter from the last case is as follows : “ Where a party to an instrument seals it, and declares in the presence of a witness that he delivers it as his deed, but keeps it in his own possession,, and there is notbirlg to qualify that, or to show that the executing party did not intend it to operate immediately, except the keeping the deed in his hands, it is a valid and effectual deed; and delivery to the party who is to take by the deed, or to any person for his use, is not essential.” It would be useless to go over the cases again, after the review of them in the court of chancery here, and in the king’s bench in England, and a concurrence in the same conclusion.

Besides, this case is stronger than either of the two to which I have referred, because, as justly remarked in the court below, the grantor was much more interested in the execution and preservation of the deed than either of the trustees; and the fact of its being in his possession at his death, therefore, does not, under the circumstances of the case, necessarily create any presumption against the idea that a delivery was intended at the time of its execution. The facts offered to be proved were properly excluded, as they had no pertinent bearing upon the point in issue.

If they proved any thing, it was that Scrugham had made special provision, before his death, for the maintenance of the plaintiff after his decease, and tended rather to negative the idea that he expected she would be provided for by means of her dower. Judgment affirmed.