Barns v. Hatch

Richardson, C. J.

It is objected in this case, that the demandant ought not to have been compelled to call thetsub-scribing witness to the deed, under which he claimed, because that witness being interested in, the estate of Joseph C. Barns, his interest inclined him to testify against the de-mandant. But we are of opinion, that this objection musí be overruled. The creditors of Joseph C. Barns may have an interest in the question whether the instrument, under which the demandant claims to hold the land, be the deed of Joseph C. Barns ; but it does not appear, that they .have any interest in the event of this suit. One of the tenants is the administrator of the estate of Joseph C, Barns ; but that could not have made him a good tenant to the precipe, in this case ; and for ought that appears, the other tenant is a total stranger to the title of Joseph C Barns.. If the de-mandant prevail in this suit, the administrator may sell the land, notwithstanding the recovery ; and if the demandant fail, he can do no more. The interest then of the creditors is an interest in the question, and not in the cause.

But it may be supposed, that the creditors have an interest in defeating this suit, because the estate of the intestate may be affected by the costs, which the demandant may recover. But the costs of this suit can in no event be a charge upon that estate. The administrator might have abated the demandant’s suit by a plea of non tenure ; and ought not to have taken upon himself the tenantcy. But he has chosen to litigate a cause, which can settle nothing, and must therefore litigáis it, at his own expense. The estate has no interest in this suit, and cannot be charged with the expenses of it.

The next question is, whether the facts stated in this case show a delivery of the instrument, on which the demandant rests his claim of title ?

It is not now to be questioned, that a delivery is essential to the existence of the deed. It is not necessary, that the deed he delivered by the grantor into the hands of the grantee ; it may be delivered to a third person for the use of the grantee ; it may be delivered absolutely or conditionally ; *307 but there must be a delivery. Coke Litt. 36, a. note 223,— Perkins, sec. 137, 138, 142. —3 Coke 35, 36. —2 Mass. Rep. 447, Wheelwright vs. Wheelwright. —9 Mem. Rep. 307, Hatch vs. Hatch. —13 Johnson 285, Ruggles vs. Lawson.— Shepherd’s Touchstone, 57.

It has been decided, both in Massachusetts and in New-York, that the sending of a deed to be recorded does not amount to a delivery. 12 Johnson 418 , Eames vs. Phipps.—10 M ass. Rep 456, Maynard vs. Maynard.

And we are of opinion, that the sending of the instrument in this case to be recorded, coupled with the declaration, that it was made to prevent the land from being taken to pay an unjust debt, does not amount to a delivery. There was nothing said or done, in this case, which show's a delivery.— It therefore becomes unnecessary to examine any other question, which the case may present.

Judgment for the tenants.