a deed. There is nothing left in him to convey. Hancock v. Dodd, Tenn. (36 S. W. Rep. 742). Blanks in a deed of trust as to the rate of interest to be paid may be filled, with the consent of the grantor, after the acknowledgment of the deed and before its delivery. Brim v. Fleming, 135 Mo. 597 (37 S. W. Rep. 501). A deed is not valid unless the name of the grantee be placed therein at the time of its execution. If it be left blank and is subsequently filled, it must be shown affirmatively to have been done by the authority and consent of both parties to the instrument. Miller v. Crouse, 159 Ill. 91 (42 N. E. Rep. 377).

Sec. 135. Witnesses. Although a statute requires a deed to be witnessed in order to be recorded, witnessing is not essential to the sufficiency of a deed as between the parties thereto. Harrass v. Edwards, 94 Wis. 459 (69 N. W. Rep. 69). Construing and applying Neb. Comp. Stat., ch. 73, § 1, which provides that deeds of real estate, " if executed in this state must be signed by the grantor or grantors being of lawful age, in the presence of at least one competent witness who shall subscribe his or her name as a witness thereto," it is held that while it is customary to make use of the expression "Witness" or "Witnessed" in attesting the execution of deeds and other instruments affecting the title to real estate, such practice is neither necessary nor universal, and any recital from which it appears that the subscriber witnessed the execution of the deed by the grantor named, is sufficient. Link v. Connell, 48 Neb. 574 (67 N. W. Rep. 475).

Sec. 136. Grantor and grantee. Where a grantor executed a deed of his land to a fictitious grantee to whom he gave his christian name a subsequent deed of trust duly executed by such grantor in the name of the fictitious grantee was held valid. Wichl v. Robertson, 97 Tenn. 458 (37 S. W. Rep. 274). Citing, David v. Insurance Co., 83 N. Y. 265 (38 Am. Rep. 418); Fallen v. Kehoe, 38 Cal. 44 (99 Am. Dec. 347). The following deed was held not void for failure to name a grantee: "I, Samuel C. Vineyard, of the state of Texas and county of Aransas, for the sum of one dollar, and out of the affection for my son, Samuel Harvey Vineyard, do

hereby grant, release, and convey, to have and to hold forever, all my right, title, and interest in the estate of James W. Byrne, purchased by me at administrator's sale in behalf of my son, Samuel Harvey Vineyard, and heirs of S. C. Vineyard and Anna W. Vineyard, hereby reserving the right to control as guardian said estate for the benefit of S. H. Vineyard and heirs of S. C. Vineyard and Anna W. Vineyard; and I, the said Samuel C. Vineyard, for and in the consideration of the sum of one dollar, to me in hand paid, do hereby bind myself by these presents to warrant, defend and protect unto the said Samuel H. Vineyard and heirs of S. C. Vineyard all the possession hereunto conveyed." Vineyard v. O'Connor,

90 Tex. 59 (36 S. W. Rep. 424).

Sec. 137.

Delivery of deeds. The delivery of a deed. is essential to pass title. Rogers v. Eich, 146 Ind. 235 (45 N. E. Rep. 93). To constitute delivery the grantor must transfer possession of the deed with intent to pass title. Donnelly v. Rafferty, 172 Pa. 687 (33 Atl. Rep. 754). Actual manual delivery of the instrument to the grantee is not necessary in order to constitute a delivery where, from the acts and agreements of the parties, it manifestly appears that it was the intention of the grantor to invest the grantee with the immediate ownership of the property, and of the grantee to accept the same. Marvin v. Stimpson, 23 Colo. 174 (46 Pac. Rep. 673). Citing, Ruckman v. Ruckman, 32 N. J. Eq. 261; Flint v. Phipps, 16 Or. 437 (19 Pac. Rep. 545); Fain v. Smith, 14 Or. 82 (12 Pac. Rep. 367; 58 Am. Rep. 281); Brown v. Brown, 66 Me. 316; Moore v. Hazelton, 9 Allen, 102; Gould v. Day, 95 U. S. 405. Where a failing debtor signed and acknowledged deeds to some of his creditors but held possession thereof under an agreement to deliver them whenever it appeared necessary to make them effective in favor of the grantees as against his other creditors, it is held that until delivery, the grantees acquired no interest or equity in the property superior to a creditor acquiring a judgment against the grantor before such delivery; but the rule is otherwise if the grantor held possession of the deed under an unconditional agreement to deliver to the grantee. Guernsey v. Black Diamond Coal & Min. Co., 99 Ia. 471 (68 N. W. Rep.

777). Where part of several grantors in a voluntary deed sign the same and deliver it to the grantee, with the present intention of passing title, but with a mutual verbal understanding that the deed should subsequently become inoperative, if other grantors should refuse to sign, there is a delivery, and the grantors cannot set up, thereafter, nonperformance of the condition to defeat the deed. Stanley v. White, 160 Ill. 605 (43 N. E. Rep. 729). Particular facts held insufficient to show delivery of a deed. Atwood v. Atwood, 15 Wash. 285 (46 Pac. Rep. 240).

Sec. 138. Delivery as a part of the execution of a deed. Delivery is essential in order to complete the execution of a deed. Brown v. Westerfield, 47 Neb. 399 (66 N. W. Rep. 439; 53 Am. St. Rep. 532). A plea, filed by one named as a grantee in a deed, alleging that the same had been “executed” by a deceased person, does not necessarily aver that the deed had been signed, sealed, and delivered to such grantee; and where it appears from other allegations in the plea that the word "executed" was used not in its strict, technical sense, but in the sense of the word "signed," the plea should not, in any event, be treated as a conclusive admission by the defendant that the deed in question had been actually delivered to and accepted by him, nor as rendering him liable to comply with conditions inserted therein for the benefit of other persons. Buffington v. Thompson, 98 Ga. 416 (25 S. E. Rep. 516).

Sec. 139. Date of delivery and taking effect of deed. In the absence of any showing as to the precise time at which a deed was delivered, it is to be presumed that it was done at the date of the acknowledgment. Nichols v. Sadler, 99 Ia. 429 (68 N. W. Rep. 709); Kendrick v. Dellinger, 117 N. C. 491 (23 S. E. Rep. 438). A deed takes effect from the time of its delivery to the grantee irrespective of any oral conditions agreed to by the parties. Lambert v. McClure, 12 Tex. Civ. App. 577 (34 S. W. Rep. 973). The court say: "If it should be a desire of a grantor that his deed should not take effect until some condition is performed, he should keep the deed himself, or leave it with some third person, a stranger to

the transaction. If he delivers the deed to the grantee, it goes into effect at once, regardless of the performance of any condition not expressed in the deed, and testimony as to any such condition would not be admissible. Gilbert v. Insurance Co.,

23 Wend. 43 (35 Am. Dec. 543); People v. Bostwick, 32 N. Y. 445; Moss v. Riddle, 5 Cranch, 351; Fairbanks v. Metcalf, 8 Mass. 230; Cocks v. Barker, 49 N. Y. 110; Blewett v. Railway Co., 49 Fed. 126; Lawton v. Sager, 11 Barb. 349; 1 Devl. Deeds, § 314; Richmond v. Morford, 4 Wash. St. 337 (30 Pac. Rep. 241; 31 Pac. Rep. 513)."

Sec. 140.

Delivery by recording. Filing of a deed for record by a grantor for the purpose and with the intent of passing title to the grantee, is a sufficient delivery. Issitt v. Dewey, 47 Neb. 196 (66 N. W. Rep. 288). The recording of a deed is prima facie evidence of delivery to the grantee but it is not conclusive. Bush v. Genther, 174 Pa. St. 154 (34 Atl. Rep. 520); Humiston v. Preston, 66 Conn. 579 (34 Atl. Rep. 544); Estes v. German Nat. Bank, 62 Ark. 7 (34 S. W. Rep. 85). Where a husband and wife joins in the excution of a deed of his lands to her, which is duly acknowledged and recorded, it cannot be defeated on the claim of the lack of delivery except by clear and convincing evidence; the fact that the husband retained possession of the deed after its recording is not sufficient to sustain such claim. American Mortg. Co., 109 Ala. 430 (20 So. Rep. 136). The recording of a deed executed to an infant grantee is sufficient delivery to convey title, nothing appearing to show a fraudulent intent on the part of the grantor. Bjmerland v. Eley, 15 Wash. 101 (45 Pac. Rep. 730).

Wells v.

Sec. 141. Delivery to third persons. Proof that a husband purchasing land caused the same to be conveyed to his wife with the intention of vesting title in her and had the deed delivered to a third person designated by him is prima facie evidence of delivery to the wife, and the presumption of delivery to her in such case is not overcome by the fact that the deed is afterwards found in possession of the husband. Rumsey v. Otis, 133 Mo. 85 (34 S. W. Rep. 551). A deed may be delivered to a third person for the benefit of a

grantee, and, if accepted by the beneficiary, the delivery is as good as if made direct to him, and as effective in conveying title, where no future control of the deed is reserved to the grantor. Crabtree v. Crabtree, 159 Ill. 342 (42 N. E. Rep. 787). The rule that delivery of a deed of gift may be to a stranger for the use of the grantee implies that the instrument truly expresses the intention of the grantor. But where the instrument so delivered does not express the real intent of the grantor, and has not been recorded, nor actually delivered to the grantee, the grantor may lawfully resume possession of the instrument, and correct it, so that it will conform to the real intent. If, after such correction, there is a valid, delivery, the grantee's title will be such as is given by the corrected instrument. Meeks v. Stillwell, 54 O. St. 541 (44 N. E. Rep. 267). Where a mortgage executed to a third person was delivered by the mortgagor to his attorney to hold for him, a delivery by the attorney to the mortgagee after the mortgagor's death is ineffectual. Humiston v. Preston, 66 Conn. 579 (34 Atl. Rep. 544). Particular case in which a delivery to a third person was held insufficient to pass title. Shults v. Shults, 159 Ill. 654 (43 N. E. Rep. 800; 50 Am. St. Rep. 188).

Sec. 142. Delivery to third persons to be delivered after grantor's death. 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. Baker v. Baker, 159 Ill. 394 (42 N. E. Rep. 867); Hagerman v. Wigent, 108 Mich. 192 (65 N. W. Rep. 756). A deed executed by a grantor to his wife which he delivered to a third person with instructions to hold until the grantor's death and then to have the same recorded, was held sufficient to vest a present title in the grantee. Ruiz v. Dow, 113 Cal. 490 (45 Pac. Rep. 867). When a grantor delivers a deed to a third person to file for record upon the grantor's death, and such delivery is made without any reservation as to the control of the deed and with the intention that it take effect presently, the title passes to the grantee upon such delivery, and is not divested by the subsequent loss or destruction of the