It has been argued that this case bears an analogy to Dawson v. Dawson, Rice Ch. 243, but a comparison of the evidence will demonstrate the difference-there the affidavit of the witness that the deed had been signed, sealed, and delivered, the recording of the deed at the instance (as was presumed) of the donor, and his subsequent declarations that he held the property in trust for his children, when taken together, left no doubt as to his intention to deliver the deed and to make it irrevocable. There is the absence of all these circumstances in this case, which only resembles that in one point, that in both cases the grantors had possession of the instruments.

In Carr v. Hoxie, 5 Mason, 60, an instrument was signed and sealed by the grantor, in the absence of the grantee, but left with a third person, without any express or implied authority to deliver it to the grantee, the court held it was not the deed of the grantor.

Proof that a deed was signed and attested, and left on the table without delivery to any one, in the absence of the donee, was held in Hughes v. Easten, 4 J. J. Marsh. 572 [20 Am. Dec. 230], not to be sufficient evidence of delivery. If delivery could not be presumed from the facts of these cases, much less can it be in the present case, where the right of Mrs. Minor to the possession of the paper was not suspended for a moment, but her absolute control over it continued from the commencement to the conclusion of the transaction-and no declaration or act showed that she intended to part with it, or to permit any other person to have the possession of it.

In Uniacke v. Giles, 2 Moll. 257, the lord chancellor greatly relied on the circumstance of the grantor's not depositing the deed with a third person. But he proceeds much further and says: "I will suppose she went through the legal formalities of saying not only, I seal and sign, but I deliver this deed, still these legal ceremonies did not finally conclude her. By carrying the deed back to her depositary, she showed a plain intent not to divest herself of power over it, but to hold it just as revocable as a will, and whatever words she used, that intent must determine its character."

Chief Justice Abbot, in Murray v. Earl of Stair, 2 Barn. & Cress. 88, in the case of a conditional delivery, seems to corroborate the conclusion in the preceding case; he says "it is not necessary that any express words should be used at the time; the conclusion must be drawn from all the circumstances."

The reasonableness of the provision of the deed seems to

AM. DEC. VOL. LI-43

strengthen the argument that it was delivered, but suppose it had conveyed her whole estate absolutely, would not the contrary conclusion be deduced without doubt, and demonstrate the propriety of her pausing before she consummated the act?

The grantor may have had as cogent reasons before she completed the gift, to keep the control of the instrument in her own hands, as if she had conveyed her whole estate-the future conduct of her children towards her might be much more easily controlled by that means than any other within her power.

The current of decisions has already gone sufficiently far to enable the courts to carry out the intention of the donor and to protect the rights of the donee, but they have never presumed delivery without some evidence that it was the intention of the donor, and no case can be found that would warrant the conclusion, that a delivery had been made, merely because the grantor had signed and sealed the instrument without any further act or declaration.

The disastrous consequences of any such rule can not be calculated. It would greatly tend to disturb domestic quiet and enkindle inextinguishable feuds in families; and few could feel secure in keeping by them such instruments for further reflection or future action, without subjecting themselves to the painful process of having their private papers brought before the court for its judgment. The second question, as to the instrument being marriage articles, depends upon the same principle-such articles would be void if they were not deliv

ered.

It is therefore ordered and decreed that the appeal be dismissed, and the circuit decree affirmed.

Decree affirmed.

JOHNSTON and DUNKIN, chancellors, concurred.

DARGAN, chancellor, absent at the hearing, from indisposition.

DELIVERY OF A DEED IS ESSENTIAL TO ITS VALIDITY: Church v. Gilman, 30 Am. Dec. 82, and cases cited in note; Van Amringe v. Morton, 34 Id. 517. WHAT CONSTITUTES DELIVERY OF A DEED.-The subject is discussed at length in note to Jones v. Jones, 16 Am. Dec. 39; and see Church v. Gilman, 30 Id. 89, and note collecting other cases in this series; Samson v. Thornton, 37 Id. 135; Farrar v. Bridges, 42 Id. 439; Shirly v. Ayres, 45 Id. 546; Peavey v. Tilton, Id. 365; Gilbert v. North Am. Fire Ins. Co., 35 Id. 543; Foley v. Cowgill, 32 Id. 49; Hicks v. Goode, 37 Id. 677; Gilmore v. Whitesides, 31 Id. 563; Snider v. Lackenour, 38 Id. 685; Hannah v. Swarner, 34 Id. 442; Merrills v. Swift, 46 Id. 315.

DELIVERY IS QUESTION OF FACT FOR JURY: Hannah v Swarner, 34 Am. Dec. 442.

BUSH v. BUSH.

[3 STROBHART'S EQUITY, 131.]

PROTECTION OF PURCHASER FOR VALUABLE CONSIDERATION STANDS ON THIS: that he has bona fide acquired the legal title and paid the purchase money before notice of the plaintiff's equity. If he has acquired the legal title but has not paid the purchase money before notice, his plea fails. If he has paid the purchase money and receives notice of plaintiff's equity before acquiring the legal title, he can not defeat that equity by procuring the legal title.

PURCHASER OF WIFE'S PROPERTY SOLD UNDER EXECUTION FOR HUSBAND'S DEBTS acquires no right in the property if the husband had none, though the trust deed by which she holds is unrecorded.

RECOVERY IN TROVER BY TRUSTEE without satisfaction vests the legal title in the defendant, and he becomes the trustee, and a court of equity will aid the cestui que trust against either the trustee or vendee for the recovery of the property.

BENJAMIN FOREMAN, on the twelfth of August, 1835, made a deed of trust of two negro women and their future increase to David Foreman, for the sole, separate, and exclusive use of the donor's daughter, Caroline, who afterwards, on the same day, intermarried with Samuel B. Bush. In a suit against Samuel B. Bush, the sheriff levied a fi. fa. on one of the negro women and her son, and sold them on November 6, 1843, to the defendant Neilson, for four hundred and ninety-five dollars, which he paid. David Foreman brought an action of trover for these negroes against Neilson, and recovered judgment for eight hundred and twelve dollars and fifty cents. After the judgment was entered, the sheriff levied executions that were older than that of Foreman on the negroes, including an after-born child, as Neilson's property. David Foreman, the trustee, then filed his bill against Neilson and the sheriff for an injunction, and for the specific delivery of the negroes, which was dismissed without prejudice; and the cestui que trust has filed this bill for an injunction, and for the specific delivery of the negroes, and for an account of their hire. To this bill defendant Neilson pleaded: 1. The recovery at law; and, 2. The dismissal of the bill in equity. These pleas were overruled, and defendant answered, alleging payment of consideration money and delivery of the slaves, and a want of notice of the existence of the deed of trust. The court dismissed the plaintiff's bill, and she appealed.

Patterson, for the appellant.

Bellinger and Hutson, contra.

By Court, DUNKIN, Chancellor. The leading facts of this case are set forth in the decree. The protection of a purchase for valuable consideration stands on this: that he has, bona fide, acquired the legal title and paid the purchase money before notice of the plaintiff's equity. If he has acquired the legal title, but has not paid the purchase money before notice, his plea fails. So, if he has paid the purchase money, but has acquired no legal title, and then receives notice of the plaintiff's equity, he can not defeat that prior equity by procuring the legal title. These principles seem very well established by the authorities, to one or two of which only it is deemed necessary to advert. Chief Justice Marshall, in Vattier v. Hinde, 7 Pet. 271, says "the rules respecting a purchaser without notice are framed for the protection of him who purchases a legal estate and pays the purchase money without knowledge of an outstanding equity. They apply fully only to the purchaser of the legal estate. Even the purchaser of an equity is bound to take notice of any prior equity." And so in Boone v. Chiles, 10 Id. 177, "it is a general principle in courts of equity that, where both parties claim by an equitable title, the one who is prior in time is deemed better in right;" and when the plaintiff has a prior equity this can be barred or avoided only by the union of the legal title with an equity arising from the payment of the money and the acquisition of the legal title, without notice of the plaintiff's equity. In Saunders v. Dehew, 2 Vern. 271, it was ruled that "a purchaser shall not protect himself by taking a conveyance from a trustee after he had notice of the trust, for, by taking a conveyance after notice of the trust, he himself becomes the trustee, and must not, to get a plank to save himself, be guilty of a breach of trust." This principle is fully recognized in Willoughby v. Willoughby, reported from the manuscript notes of Lord Hardwicke in 1 T. R. 762.

Under the deed from her father, Benjamin Foreman, the complainant was the equitable owner of the slaves, the legal title being in her trustee. When they were levied on and sold under an execution against her husband, in November, 1843, the defendant, Neilson, became the purchaser. He acquired the title of the husband, and all the rights which the creditors of the husband were authorized to dispose of, and no more. Whether he paid five dollars or five hundred, the rights of the purchaser were the same. But the husband had no right whatever in the slaves. Under the trust deed, any interest or right on his part was expressly excluded. Something was said in the argument

about the fraudulent possession of the husband. But the possession was in strict accordance with the provisions of the deed; and it is not an instrument which the law requires to be recorded. But all these questions were open for discussion in the suit at law instituted by the trustee, and were solved by the jury against the purchaser at sheriff's sales. It seems, then, very clear that although the defendant (the purchaser) may have paid his money to the sheriff without any knowledge of the plaintiff's right, he had no more claim to the slaves than if he had, ignorantly, purchased the property of any other third person, which had been levied on and sold under an execution against S. B. Bush.

But the plaintiff's trustee brought an action of trover against the defendant, Neilson, and obtained a verdict for eight hundred and twelve dollars and fifty cents. On this trial all the interests of the plaintiff under the trust deed were, of course, developed. No part of the judgment has ever been realized. But it has been determined that the recovery in trover, without satisfaction, vested the legal title of the trustee in the defendant Neilson. But, as was said on a former hearing of this cause, Neilson can certainly be in no better situation by this misapprehension of the trustee than if he had, at the time of the rendition of the verdict, purchased from him his legal title and paid him the money. Having then full notice of the equitable interests of the plaintiff, he can not be permitted to shelter himseif under a legal title thus acquired. Obtaining the legal title with knowledge of the trust, he becomes himself the trustee. But the defendant has not paid the verdict in trover. Neither the plaintiff, nor her trustee, has ever received any value for the slaves which were taken from her possession; and under the proceedings in trover the defendant is entitled to no more favorable consideration than if he had received a bill of sale from the trustee, with full knowledge of the plaintiff's equity, and had given to the trustee a bond for the purchase money which was yet unpaid. In that case, or in any other view which the court has been able to take, the rights of the plaintiff would not be divested, but she would be entitled to the aid of this court either against the trustee, or his vendee, for the recovery of the property.

It is ordered and decreed that the decree of the circuit court be reformed that the negroes described in the pleadings be delivered up to the complainant to be held subject to the provisions of the deed of the twelfth of August, 1835, and that the