deed before it is recorded. Brown v. Westerfiei, 47 Neb. 399 (66 N. W. Rep. 439; 53 Am. St. Rep. 532). Particular evidence held sufficient to establish the delivery of a deed executed by a father to his son and delivered to a third person to be delivered to the son after the death of the father. Denzler v. Rieckhoff, 97 Ia. 75 (66 N. W. Rep. 147).

Where one who was ill with an incurable disease which fact he knew, signed and acknowledged a deed to his infant son, and gave it to his brother with instructions, after the maker's death, to "have it recorded, and turn it over to the boy," it was held that there was a sufficient delivery to the grantee. Hoffmire v. Martin, 29 Or. 240 (45 Pac. Rep. 754). The court say: "The question as to when a deed executed and deposited with a stranger, to be delivered to the grantee upon the death of the grantor, is effectual to pass title, has been the subject of much judicial controversy; but it is now substantially agreed that its solution depends on whether the grantor intends to and does retain dominion and control over it after such delivery, or parts with the possession and control of it absolutely at the time of the delivery. In the former case, by the great weight of authority,—although the decisions are not entirely harmonious,-there is no sufficient delivery and the deed passes nothing. 1 Delv. Deeds, § 282; Stinson v. Anderson, 96 Ill. 373; Prutsman v. Baker, 30 Wis. 644 (11 Am. Rep. 592); Brown v. Brown, 66 Me. 316; Cook v. Brown, 34 N. H. 460; Williams v. Schatz, 42 Ohio St. 47; Provart v. Harris, 150 Ill. 40 (36 N. E. Rep. 958); Davis v. Ellis, 39 W. Va. 226 (19 S. E. Rep. 399). But if the grantor parts with all dominion and control over the deed, reserving no right to recall it or alter its provisions, it is a good delivery, and the grantee will, on the death of the grantor, succeed to the title. It was so held in Foster v. Mansfield, 3 Metc. (Mass.) 412, where a grantor executed a deed and delivered it to the scrivener, to be retained by him until the grantor's death, and then to be delivered to the grantee. In this case Mr. Chief Justice Shaw makes a distinction-which seems generally to be recognized by the authorities-between a deed of the kind here under consideration and an escrow. He says: Where the future delivery is to depend upon the pay. ment of money, or the performance of some other condition, it

will be deemed an escrow. Where it is merely to await the lapse of time or the happening of some contingency, and not the performanee of any condition, it will be deemed the grantor's deed presently. Still it will not take effect as a deed until the second delivery, but when thus delivered it will take effect, by relation, from the first delivery.' Again, in the case of Stone v. Duvall, 77 Ill. 475, where a party executed a deed for land to his married daughter, and directed the party in whose hands he placed the same to have it recorded and hold it until the grantor's death, but, having survived the daughter, filed a bill to set the same aside, it was held that, in the absence of proof of any mistake in drafting the same, the deed could not be set aside, but the grantor's original intention must be carried into effect; that he was entitled to the use of the land, as though he had a life estate therein, and upon his death the deed would take effect, so as to have vested a title in the grantee, by relation back, and so pass the title to her heirs at law. So, also, in Lantham v. Udell, 38 Mich. 238, the grantor executed and acknowledged certain deeds, and delivered them to his wife, with direction to hand them over to the grantees immediately after his death; and it was held that such deeds were operative to carry out the grantor's intent, and were not void for non-delivery. To the same effect are Lang v. Smith, 37 W. Va. 734 (17 S. E. Rep. 213); Stephens v. Rinchart, 72 Pa. St. 434; Reed v. Douthit, 62 Ill. 348; Hathaway v. Payne, 34 N. Y. 92; Wheelright v. Wheelright, 2 Mass. 447 (3 Am. Dec. 66); Devl. Deeds, § 280; and the authorities which are cited in these cases fully sustain the rule laid down."

Sec. 143. Delivery in escrow. A delivery cannot be made to the grantee himself as an escrow. Baker v. Baker, 159 Ill. 394 (42 N. E. Rep. 867). Until the conditions of the escrow have been performed so as to entitle the deed to be delivered, the grantor retains the title to the property, and it is subject to the laws of descent, or to the levy of an attachment or execution by his creditors. The rule is not affected by the fact that the grantee is allowed to take possession before the delivery of the deed. Wolcott v. Johns, Colo. App. (44 Pac. Rep. 675). Citing, Warv. Vend. 515; 3 Washb.

Real Estate, 302; Prutsman v. Baker, 30 Wis. 644 (11 Am. Rep. 592); Smith v. Bank, 32 Vt. 341; Jackson v. Rowland, 6 Wend. 667; Teneick v. Flagg, 29 N. J. Law 26; Cragger v. Lansing, 43 N. Y. 550; Jackson v. Catlin, 2 Johns. 248 (3 Am. Dec. 415). Where an owner of mining property listed it with an agent for sale who negotiated a sale to a prospect. ive corporation of which he was to be a member and another of the proposed incorporators paid the owner half of the purchase price and agreed to secure by mortgage the other half, payable in one year, and such owner executed a deed to the person making such payment and forwarded it to the agent with instructions to deliver when the mortgage was given, it was held that the delivery to the agent was a delivery in escrow, and the conditions remaining unfulfilled for several months the grantor had the right to rescind his conveyance upon accounting for the purchase money paid and reimbursing for improvements. Tyler v. Cate, 29 Or. 515 (45 Pac. Rep. 800). Where a vendor and vendee execute deed and notes to each other respectively and place them in escrow to be delivered, when the vendor has furnished evidence of a good title in him to the property, satisfactory to the custodian, it is his duty to disclose to the custodian all matters affecting the title, and the vendee is not bound to accept the title upon its mere approval by the custodian when prior to such approval a creditor of the vendor had levied an attachment on the property which fact the vendor had concealed. In such a case the vendee has no right, nor can he be compelled, to pay off the attachment and deduct it from his note before delivery. Wolcott v. Johns, Colo. App. (44 Pac. Rep. 675).

Sec. 144. Presumption of delivery from grantee's possession of deed. The possession by a grantee of a deed in due form is presumptive evidence of its regular execution and delivery to him. Nichols v. Sadler, 99 Ia. 429 (68 N. W. Rep. 709); Rohr v. Alexander, 57 Kan. 381 (46 Pac. Rep. 699). This presumption can only be overcome by clear and convincing evidence; and it is not overcome by a statement of the grantor, made some time before the execution of the deed, expressing a purpose to make a deed to the grantee which in a certain contingency could be returned and destroyed,

nor by the fact that the deed remained unrecorded for several weeks and until after the death of the grantor. Rohr v. Alexander, 57 Kan. 381 (46 Pac. Rep. 699). It cannot be overthrown by the grantor's denial of the execution of the deed, where it has been recorded and the grantee has held continued possession under it, all of which was known to the grantor and not objected to by him. Nixon v. Post, 13 Wash. St. 181 (43 Pac. Rep. 23).

Sec. 145. Surrender and cancellation of deeds. Where a deed is delivered and accepted the title vests in the grantee and its subsequent loss, destruction or cancellation does not divest the grantee of his title. Tate v. Clement, 176 Pa. St. 550 (35 Atl. Rep. 214); Brown v. Westerfield, 47 Neb. 399 (66 N. W. Rep. 439; 53 Am. St. Rep. 532). Where a husband purchasing land caused the conveyance thereof to be executed to his wife and there is sufficient proof to create a presumption that such deed was delivered to her, this presumption is not overcome by showing a subsequent possession of it by the husband, and his asserting title thereunder. Rumsey v. Otis, 133 Mo. 85 (34 S. W. Rep. 551).

Sec. 146.

Construction of deeds. A deed which does not purport to convey anything but the land does not pass to the grantee an accrued right of action for damages thereto. Flickinger v. Omaha Bridge & T. Ry. Co., 98 Ia. 538 (67 N. W. Rep. 372). Where the granting portion of a deed passes the grantor's whole estate, the grant cannot be diminished by a mere recital in the description. Tate v. Clement, 176 Pa. St. 550 (35 Atl. Rep. 214). In construing a deed made in pursuance of a bond given for its execution the intention of the parties is to be determined from both instruments. Stuyvesant v. Western Mort. & Inv. Co., 22 Col. 28 (43 Pac. Rep. 144). Where the meaning of a covenant in a deed is rendered uncertain by the omission of words a court cannot supply them unless the instrument furnishes the means of supplying them with certainty. Mississippi R. Logging Co. v. Wheelihan, 94 Wis. 96 (68 N. W. Rep. 878). In the construction of deeds or other instruments the punctuation may be considered in order to solve an ambiguity, it appearing that such ambi

Olivet v. WhitWhere the grantor

guity was not caused by the punctuation. worth, 82 Md. 258 (33 Atl. Rep. 723). has an alienable interest in land, and at the same time a power to sell the land, a conveyance of the land by him without expressly or by some necessary implication making it appear that the conveyance is made in execution of the power, it will be held, as matter of legal construction, that the intention is to pass his interest only; and that, where the grantor has no interest which his deed can pass, but only a power to sell land, his conveyance of the land without reference to the power is construed an execution of the power only, because "the deed would be insensible, and a mere absurdity, unless it executed the power." Ridgely v. Cross, 83 Md. 161 (34 Atl. Rep. 469). The law conclusively presumes it to be the intention of the parties that the grantee shall enjoy beneficially the subject of the grant. Upon this presumption is founded the doctrine that the grant of a principal thing carries all the things necessary to the use and enjoyment of the thing granted, which the grantor had power to convey. This principle is applied to the grant of a way. White v. Eagle & Phoenix Hotel Co., N. H. (34 Atl. Rep. 672). Citing, Leonard v. Leonard, 7 Allen 277, 283, and Tourtellot v. Phelps, 4 Gray 370, 378. Miss. Code, § 2479, providing that the use of the words "convey and warrant" in a deed shall have the effect" to transfer all the right, title, claim, and possession of the person making it " is held not to apply where the instru ment clearly expresses the intention of the grantor to convey a less estate. Hart v. Gardner, 74 Miss. 153 (20 So. Rep. 877).

Sec. 147. Construction of particular deeds. Although the preamble in a conveyance declares it to be the purpose of the grantor to specially provide for the grantee and her children, if the granting clause in the deed conveys the property to the grantee "for and during her natural life, and, at her death, then to the heirs of her body, and their heirs, forever," the grant will be held to be to the heirs of the grantee's body and not to her children. Nye v. Lovitt, 92 Va. 710 (24 S. E. Rep. 345). A description of the property conveyed by a grantor as "the brick house now occupied by me

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