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that if the annuity becomes due before the death of the vendor, and the purchaser has neglected to pay it or tender payment, the court will render him no assistance. (c) But the simple contract of purchase and sale must, of course, be a complete and concluded contract, in order to transfer the right of property and the risk of loss to the purchaser. In the case of judicial sales by the court in the master's office, the contract of sale is not considered to be concluded until the master's report is confirmed as to the party who is the best purchaser, and the title is accepted, and in some cases not until the purchase-money is brought into court, or paid into the bank. (d) In order to transfer the right of property and the risk of loss, it must also appear that the vendor has a good title at the time of the making of the contract, or before the disaster happened, and that he was clothed with the estate or interest he agreed to sell; for, if he had not himself got. the estate, it can not of course have passed to the purchaser.

513. Of the production and proof of the vendor's title. It is the first duty of the vendor, when an executory contract of sale has been concluded, to prepare and show to the purchaser satisfactory evidence of title. "An agreement to make out a good title is implied from every contract for the sale of realty;" (e) and a purchaser is not bound to accept a doubtful title.' If no precise time is fixed within which the title is to be deduced, the vendor will have a rea

(c) Pope v. Roots, 1 Bro. P. C. 370. (d) Twigg v. Fifield, 13 Ves. 518. Vincent v. Going, 3 Dru. & W. 75. Mackrett v. Hunt, 2 Mad. 34, n.

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(e) Hall v. Betty, 4 M. & Gr. 410; 5 Sc. N. R. 508. Dick v. Donald, 1 Bligh, N. S. 655.

1 See Dearth v. Williamson, 2 Serg & R. 500, Sweitzer v. Hummell, 3 Id. 228.

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sonable time for its establishment. (f)' He may,

(ƒ)

if

he thinks fit, stipulate for the sale of an estate with such a title only as he happens to have; and in such

(f) Sansom v. Rhodes, 6 Bing. N. C. 261; 8 Sc. 544.

A vendor of land who has covenanted to convey on a day certain, will not be in default until the party entitled to the conveyance has demanded it, and having waited a reasonable time for the preparation and execution of the deed, has demanded it a second time. But if the first demand was refused, a second will not be necessary. Connelly v. Pierce, 2 Wend. 129; Blood v. Goodrich, 9 Wend. 68.

As to the essentiality of delivery to a deed, see Hulick v. Scovil, 4 Gilm. 175; Church v. Gilman, 12 Wend. 656; Fairbanks v. Metcalf, 8 Mass. 230; Stiles v. Brown, 16 Vt. 563; Fletcher v. Mansur, 5 Ind. 267. Once delivered, a deed can not be defeated by subsequent acts not conditioned in the Jeed itself. Washburn on Real Property, vol. ii. p. 577. There can be but one delivery of the same deed. (Id.) The deed takes effect from the time of its delivery, not from its date, though prima facie they are supposed to be identical. Id.; Jackson v. Bard, 4 Johns. 230; Harrison v. Phillips Academy, 12 Mass. 455; Geiss v. Odenheimer, 4 Yeates, 278; Cutts v. York Co., 18 Me. 190; Colquhoun v. Alkinson, 6 Munf. 515. The delivery must be intentional. If a deed be laid upon a table by the grantor in the presence of the grantee, with the intention of the latter taking it, that is a good delivery; but if the grantor laid it down with no such intention, the grantee's taking it up does not amount to a delivery. Washburn, vol. ii., p. 604; Methodist Church v. Jaques, 1 Johns. Ch. 456. But see Fisher v. Beckwith, 30 Wis. 55, holding that when a grantor has been guilty of negligence in having made, signed, and acknowledged the deed, and keeping or depositing it in a place where he knew the party named as grantee might possess himself of it if so disposed, he is estopped from setting up in title against an innocent purchaser for value. And see as to what is not a delivery, Deanesney v. Graveline, 56 Ill. 93; Duncan v. Pope, 47 Ga. 445; Stanton v. Miller, 65 Barb. 58; Ford v. James, 2 Abb. (N. Y.) App. Dec. 159. Delivery by a corporation will ordinarily consist in the attaching thereto of their common seal by their consent. Washburn, vol. ii. p. 578. If they authorize their attorney to deliver it, it is not their deed until formally delivered by him (Id.). Delivery to the authorized

a case the purchaser will be bound to take whatever interest the vendor has in the premises, whether freehold, leasehold, or copyhold. (g) The vendor must

(g) Freme v. Wright, 4 Mad. 364. Duke v. Barnett, 2 Coll. C. C. 337.

agent of a corporation, is a delivery to that corporation. Western R. R. v. Babcock, 6 Met. (Mass.) 356.

A delivery of a deed to the agent of the grantee, to be held while he considers whether or not to accept, is no delivery. Ford v. James, 2 Abb. (N. Y.) App. Dec. 159. In Hatch v. Hatch, 9 Mass, 307; and Foster v. Mansfield, 3 Met. (Mass.) 412, a father made a deed to his son, and left it in the hands of a stranger, to be delivered to the son after his (the father's) death, and the delivery was held good, although it was not regarded as an escrow by the grantor; and see O'Kelly v. O'Kelly, 8 Met. (Mass.) 439. See as to what will be considered as an escrow, Marsh v. Austin, Allen 238; Hulick v. Scoville, 4 Gilm. 176; Buffum v. Green, 5 N. H. 71; Belden v. Carter, 49 Day 66; Ruggles v. Lawson, 13 Johns. 285; Morrison v. Kelly, 22 Ill. 626; Wheelright v. Wheelright, 2 Mass. 447; Foster v. Mansfield, 3 Met. 412; Wisson v. Stevens, 4 Ired. Eq. 557; Oliver v. Stone, 24 Ga. 63; Cincinnati, &c., R. R. v. Iliff, 13 Ohio St. 249; Church v. Gilman, 15 Wend. 656; Mallett v. Page, 8 Ind. 364; Guard v. Bradley, 7 Id. 600; Stewart v. Weed, 11 Id. 92; Berkshire, &c., Ins. Co. v. Sturges, 13 Gray (Mass.) 177; Phillips v. Houston, 5 Jones (Id.) 302 Boody v. Davis, 20 N. H. 140; Cloud v. Calhoun, 10 Rich. (1 Eq.) 358; Mitchell v. Ryan, 3 Ohio St. 382; Bullit v. Taylor, Miss. 741; Boardman v. Dean, 34 Pa. St. 252.

But there can be no delivery without an acceptance on the part of the grantee, and an act of delivery and acceptance must be mutual and concurrent. Washburn, vol. ii. p. 581; Mitchell v. Ryan, 3 Ohio St. 386; Jackson v. Bodle, 20 Johns. 184; Dikes v. Miller, 24 Tex. 417.

Mere proof of acceptance at a time subsequent to the act of delivery will not give validity to a deed unless, the act of delivery were one in its nature continuing until acceptance, e. g., such as leaving a deed on deposit, to be accepted by the grantee at his election. Maynard v. Maynard, 10 Mass. 456; Rennell v. Weyant, 2 Har. 501; Elsey v. Metcalf, 1 Den. 326; Jones v. Bush, 2 Harring. 1; Church v. Gilman, 15 Wend. 656; Jackson v. Dunlap, 1 John's Cas. 114; Canning v. Pinkham, 1 N. H. 353; Buffum v. Green, 5 N. H. 71; Hulick

furnish, at his own expense, an abstract of his title, consisting of a written statement containing with sufficient fullness the effect of every instrument which

v. Scovil, 4 Gilm. 177; Lloyd v. Giddings, 7 Ohio, 2. Mitchel v. Ryan, 3 Ohio St. 377.

But see

A deed handed to a party to see if it is satisfactory; or to an attorney, with the remark that it was not to be binding until something else was done, is not a delivery of that deed. Graves v. Dudley, 20 N. Y. 76; Black v. Shreve, 13 N. J. L. 457. And consult Parker v. Parker, 1 Gray 407; How v. Dewing, 2 Id. 476; Philadelphia, &c., R. R. Co. v. Howard, 13 How. 334; Worrall v. Muva, 1 Seld. 229; and it may be shown by parol evidence that a deed has not been delivered. Black v. Lamb, 1 Beasl. (N. J.) 116; Black v. Shreve, 13 N. J. L. 457; Roberts v. Jackson, 1 Wend. 478; though where a deed is found in a grantee's hands, the presumption is that it has been delivered; Clarke v. Ray, 1 Harr. & J. 319; Ward v. Lewis, 4 Pick. 518; Ward v. Ross, 1 Stew. (Ala.) 136; Canning v. Pinkham, 1 N. H. 353; Cutts v. York Co., 18 Me. 190; Green v. Yarnali, 6 Mo. 326; Houston v. Stanton, 11 Ala. 412; Chandler v. Temple, 4 Cush. 285; Southern Life Ins. Co. v. Cole, 4 Fla. 359; though it may be shown to have been surreptitiously obtained. Den v. Farlee, 1 N. J. 279; Morris v. Henderson, 37 Miss. 501; Adams v. Frye, 3 Met. 109; Williams v. Sullivan, 10 Rich. Eq. 217; Little v. Gibson, 39 N. H. 505; Black v. Shreve, 13 N. J. 459; but not if delivered to a stranger; Church v. Gilman, 6 Wend. 656. Depositing the deed in the post office has been held to be a delivery; McKenney v. Rhodes, 5 Watts. 343; where the grantor has parted with all control of the deed, and it is upon its face beneficial to the grantee, its acceptance will be presumed, even if the delivery was made to one without previous authority to receive it—that is, if the person claiming the deed show affirmatively that the grantee was in esse when the delivery was made; Hulick v. Scovil, 4 Gilm. 190; Beasley v. Atwill, 2 Cal. 231, 236; Wall v. Wall, 30 Miss. 91. When a grantor, after executing a deed ready for delivery, retains it, by agreement with the grantee, it is neither a delivery nor an acceptance; Jackson v. Dunlop, 1 Johns. Cas. 114; but if, under those circumstances, the grantor declared that he delivered it, it has been held to be a delivery. Stewart v. Weed, 11 Ind. 92; Souverbye v. Arden, 1 Johns. Cas. 253, 255; Scrugham v. Wood, 15 Wend. 545.

constitutes part of his title. () The abstract ought to show the state of the title for at least sixty years immediately preceding the contract of sale. (¿) And,

(h) Oakden v. Pike, 34 L. J., Ch. 620. Want v. Stallibrass, L. R., 8

Ex. 175; 42 L. J., Ex. 108.

(i) Cooper v. Emery, 1 Phill. 388.

No particular words are necessary to accompany a delivery. Maynard v. Maynard, 10 Mass. 456. See in this connection, Mitchell v. Ryan, 3 Ohio St. 377, where title was held to have passed to an infant daughter from her father, who died before she knew that the deed had been made to her. As to delivery by means of registration in the register's office, see Parker v. Hill, 8 Met. 447; Jackson v. Leek, 12 Wend. 107; Barns v. Hatch, 3 N. H. 304; Denton v. Perry, 5 Vt. 382; Harrison v. Phillips Academy, 12 Mass. 455; Jackson v. Phipps, 12 Johns. 418; Jackson v. Richards, 6 Cow. 617; Elsey v. Metcalf, 1 Denio, 326; Hedge v. Drew, 12 Pick. 141 · Powers v. Russell, 13 Pick. 69, 77; Parker v. Hill, 8 Met 447. A delivery after record is good; Porter v. Buckingham, 2 Harring. 197; Baldwin v. Maltsby, 5 Ired. 505;. Stillwell v. Hubbard, 20 Wend. 44; Rathbun v. Rathbun, 6 Barb. 98; Oliver v. Stone, 24 Ga. 63; Berkshire M. F. Ins. Co. v. Sturgis, 13 Gray, 177; Boardman v. Dean, 34 Penn. St. 252; Boody v. Davis, 20 N. H. 140; Shaw v. Hayward, 7 Cush. 174; Mills v. Gore, 20 Pick. 28.

In certain states a deed made to a married woman, without her husband's consent, is void as to her; Foley v. Howard, 8 Clarke (Iowa) 36; Melvin v. Proprietors, 16 Pick. 167; though a wife, after her husband's death, can not verbally waive or disclaim a grant made to them both during his lifetime; Washburn on Real Property, vol. ii., p. 583. The relationship of a party to whom the deed is delivered, may be such that the law will presume an acceptance; as a delivery to a father for his daughter; Bryan v. Wash, 2 Gilm. 557; or to a cestui que trust, who was the beneficiary under the deed; Souverbye v. Arden, 1 Johns. Ch. 240; Jaques v. Methodist Church, 17 Johns. 577; S. C., 1 Johns. Ch. 456; Cloud v. Calhoun, 10 Rich. Eq. 362; Morrison v. Kelly, 22 Ill. 612.

Remaindermen can take under a deed poll delivered to a tenant of the estate, though a stranger to the deed. Phelps v. Phelps, 17 Md. 134. Where the deed conveys an estate to one which is defeasible upon contingency, and the same is thereupon to go over to another, as a contingent limitation, or there is a contingent remainder limited after the expiration of

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