Copyright
Delaware. Superior Court.

Reports of cases argued and adjudged in the Superior court and Court of errors and appeals of the state of Delaware : from the organization of those courts under the amended constitution [1832-1855], with references to some of the earlier cases, published at the request of the General Assembly (Volu online

. (page 1 of 63)
Online LibraryDelaware. Superior CourtReports of cases argued and adjudged in the Superior court and Court of errors and appeals of the state of Delaware : from the organization of those courts under the amended constitution [1832-1855], with references to some of the earlier cases, published at the request of the General Assembly (Volu → online text (page 1 of 63)
Font size
QR-code for this ebook


UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY

Faculty library



DENNIS & CO.. INI

Law Book Publishers

7S1 MAIN RTRFF



FOREWORD

This volume is an exact photo-reproduction of an original copy of

S. M. Harrington's
DELAWARE REPORTS

VOLUME 4



As a copy of the original is practically unobtainable, this volume
is offered to enable law libraries to complete their collection of
Delaware Reports.

The edition has a limited printing.

February, 1955

Buffalo, N. Y. DENNIS & CO., INC.



\) \ovv vr e, : ' . ^ * f * f 5f V_ o-Af 1

I

REPORTS

or
CASES ARGUED AND ADJUDGED

IN THE

SUPERIOR COURT

AND

COURT OF ERRORS AND APPEALS

OF THK

STATE OF DELAWARE,

FROM THE

ORGANIZATION OF THOSE COURTS
UNDER THE

AMENDED CONSTITUTION;

TO WHICH ARE ADDED

SELECT CASES FROM THE COURTS OF OYER AND TERMINER AND
GENERAL SESSIONS.



PUBLISHED AT THE REQUEST OF THE GENERAL ASSEMBLY.



By SAMUEL M. HARRINGTON,

ONE OF THE JUDGES OF THE SAID COURTS.



Store decisis. LEG. MAX.



VOL. IV.



DOVER:
PRINTED BY S. KIMMEY.

1848.






45




TABLE OF CASES.



A.

Allen vs Miles
Allen vs Smith
Andrews vs Allen et al.
Adams, Jefferson vs

" Rice vs
Allen, "Hamilton vs

" Andrews vs
Allerdice, Carnahan vs
Allmond, Mousely vs
Anderson, Stean vs

B.

Babb's ex'rs. vs Elliott
Bailey vs Railroad Co.
Bank vs Cullen's adm'r.
Bank vs Gardner's adm'r.
Bank vs Leonard
Bank us Waples' ex'r.
Barker and Wife vs Spicer
Bate vs Burr
Belcher vs Grubb
Belts vs Matthews
Bishop vs Spruance
Boston vs Bradley
Bowman vs Herring
Bradley's ex'rs. vs Maull
Brittingham vs Collins et al.
Brittingham's use vs Bradley
Brown vs Smyth
Burton vs Burton's adm'r.

" vs Burton

" vs Hazzard

" vs Railroad Co.

" vs Short

" vs Tunnell et al.

" vs Waples

" vs Wharton

" vs Wolfe
Bailey, Garrett & Smyth vs

" Rogers vs

" Gregory vs
Barker, Redden vs

" Morris vs
Barr, Logan vi



Barratt, Waterman vs 311

Bennett's adm'r., Rowland vt 329

234 Benson, Moody vs 115

234 Belts, Deputy vs 352

452 Bogan, Higgins vs 330

321 Bonwell, Colescolt vs 364

332 Boslick, State vs 563

326 Boys, Weiser vs 249

4 52 Bradley, Boston vs 524

99 " Britlingham vs 524

92 Brown, Hill vs 519

209 " Scolten vs 324

Burchinal, State vs 572

Burton, Duffell vs 290

" Hazzard vs 62

466 " Harris vs 66

389 " Morris vs 53

289 " Rodney vs 183

430 " Mariner vs 69

536 Burr, Bate vs 130

429 Burris, Stale vs 582

348 Bush, Jones vs 1

130 Butler, Laylon vs 507

46 1 Buzine, State vs 572

427

114 C

524

458 Cannon vs Maull 223

223 Carnahan & Co. vs Allerdice 99

298 Chambers vs Fennimore's adm r. 368

524 Clothier vs Clark 365

204 Colescott vs Bonwell 364

73 Collins vs Steel 536

38 Cook, ass'ee., vs Cooper 189

100 Coverdale's use vs Fowler 358

252 Crossan's adm'x. vs Glass 342

38 Cummins vs Spruance 315

424 Curry & Davis vs May 173

73 Cannon, Ellegood vs 176

296 " Hallvs 360

221 Clark, Pritchetl vs 280

197 Carlwell, Perkins vs 270

256 Caussey, Tyre vs 425

256 Cochran, Wilson vs 88

179 Clark, Clolhier vs 3G5

520 Collins et al , Brittingham vs 298

516 Cooper, Cook ass'ee. vs 189



IV



TABLE OF CASES.



Court, Rules of 452

Cruson, Tilghman v 341
Cullen, Bank vs

Curry et al., May vs 265

D.

Davis vs Marshall 64

" vi Smith 68

Deputy vs Belts 352

Draper vs Randolph & Co. 454

Drummond vs Hopper 327

Duffel's lessee vs Burton 290

Dulany vs Green 285

Donovan's lessee vs Donovan 177

Dickenson, Runyan vs 243

Dolby, Smith & Wife vs 350

Duncan, Quinly vs 383

E.

Eccles vs Shannon 193

Ellegood vs Cannon 176

Elliott, Babb's ex'r. vs 466

Ellis, Redden vs 309

Eves, Fredd vs 385

F.

Faris' adm'r. vs Frazier 206

Farmers' Bank vs Cullen 289

" vs Gardner 430

" " vs Waples 429

Fredd vs Eves 385

Fcnnimore's adm'r., Chambers vs 368

Field et al., Hall vs 533

Foster, Rice vs 479

Fowler, Coverdale vs 358

State vs 358

Frest, State vs 557

Framos, State vs 569

Frazier, Nicholson vi 206

G.

Garrett & Smyth vs Bailey 197

Gibbons vs Gibbons 105

Gilpin vs Temple 190

Gla/ier vs Stafford 240

Gregg's If ssce vs McDaniel 367

Gregory vs Bailey's adm'r. 256

Gardner, Bank vs 430

" Wolfe vt 338

Glass, Crossan vs 342

Gould, Simmons vs 203

Green, Dulany vs 285

" Ross v* 308

Griffin, Townsend vs 440

Grubb, Belcher vs 46]



H.

Haines vs Wise 243

Hall vs Cannon 360

:l vs Field et al. 533

" vs The State 132

Hamilton's garn. vs Allen 326

Harris vs Burton 66

Harwood's case 541

Hatfield vs Perry 463

Hazzard vs Burton 62

" vs Layton 512
Hearn vs Ross 46, 101

Hickman's case 580

Higgins vs Bogan 330

Hill, adm'r., vs Brown 519

Horsey 's lessee vs Horsey 517

Houston vs Jamison's adm'r. 330

" vs Spruance 117

Hudson vs Pettijohn 356

Haddaway, Yarnall vs 437

Harten, State vs 582

Handy, State vs 566

Harker. State vs 559

Hazel, Lewes vs 470

Hazzard, Burton vs 100

Heathers, Wolfe vs 325

Hearn, Ross vs 101

Hedges, Jackson vs 96
Herring, Prickett vs 32"*, 365

" Bowman vi 458

Hickman, Rowland vs 478

Hill, Lynch ex'x. vs 312

Hobson, Wright vs 382

Hopper, Drummond vs 327

Houston, Wests vs 1 70

Hudson, Wilson vs 168

" Pettijohn vs 178, 468

Huxley, Temple vs 343



I.



Inkeep vs Shields 345

Ingram, Matthews vs 105

J.

Jackson vs Hedges 96

" vs Patterson 534

Jefferson vs Adams 321

" vs Stewart 82

Johnson vs Johnson 171

" vs Temple 446

Jones et al. vs Bush et al. 1

" vs Morris 104

Jamison's adm'r., Houston vs 330

Jeans, State vs 570

" Underwood vs 201

Jefferson, Lofland vs 303

Johnson, Smith vs 541



TABLE OF CASES



Jones, Stone vs

Jones & Spence, Morris

K.

Kearns vs Kearns ex'r.
King's adm'r. vs Lambden
Kinniken vs Kinney
Kinder et al., Lank V8
Knowles, Outten vs
Koch, State vs



Lank vs Kinder et al.
Layton vs Butler

" vs The State
Lessee of Duffel vs Burton
Lewis vs Hazel

" vs Norwood
Lindsay vs Springer
Lofland vs Jefferson
Logan vs Barr
Lynch Ex'x. vs Hill

" vs Tunnell

Lambden, King vs
Layton, State vs
Le Huray, Plunkett vs
Leonard, Bank vs
Levy Court, Wilson vs
Lewes, Wallace's lessee vs
Lofland, Watson vs
Loper et al., Solomon vs
Lynch, Tubbs vs

M.

Macklin vs Ruth
McDermot vs McCormack
McHenry vs Railroad Co.
Mariner vs Burton's adm'r.
Matthews vs Ingram
May vs Curry & Davis
Maybin vs Williamson
Mercer's case
Miles vs Smith's adm'r.
Moody vs Benson
Morris vs Barker

" vs Burton

" vs Jones & Spence
Mousely vs Allmond
McCormick, Regan vs
McDaniel, Gregg's lessee vs
McDonald, State vs
Magee, Wall's lessee vs
Marshall, Wilson's adm'r. vs

" Davis vs
Matthews, Belts vs
Maull, Cannon vs

" Brad ley's ex. vs
May, Curry & Davis vs



255


Miles, Allen vs


234


428


Millward et al., Saunders vs


246




Moore, Plunkett vs


379




Morris, Jones et al. va


104




" Stayton vs


224, 357


83


Mousely, State vs


553


283






313


N.




457






533


Nicholson vs Frazier


206


570


Newport, State vs


567




Norwood, Lewis vs


460




O.




457






507


Outten and wife vs Knowles


533


9






290


P.




470






460


Parker vs Whitaker


527


547


Pepper and Wife vs Warrington


55


303


Perkins vs Cartwell


270


546


Pettijohn vs Hudson


178, 468


312


Plunkett vs Le Huray


436


284


" vs Moore


379


283


Prettyman vs Shockley


112


512


" vs Waples" ex.


299


43(5


Pritchett vs Clark


280


536


Prickett vs Herring


323, 365


88


Pusey's ex. vs Smyth


204


75


Pyle's ass'ee. vs Jeans


201


60


Parris, Rash vs


81


187


Patterson, Jackson vs


534


521


Pepper et al., Short vs


181




Peary, Hatfield vs


463




Pettijohn, Hudson vs


356




Pindergrass, Webb vs


439


87


Porter, State vs


556


543


Platt, State vs


154


448






69


Q.




105






265


Quinly vs Duncan


383


434






248


R.




244






115


Rash vs Parris


81


520


Redden vs Barker


179


53


" vs Ellis


309


428


" vs Spruance et al.


2'17, 265


92


Regan vs McCormack


435


435


Rice vs Adams et al.


332


367


" vs Foster


479


555


Robinson's ex. vs Robinson


418


108


Rodney's lessee vs Burton


183


464


Rogers vs Bailey's adm'r.


256


64


Ross vs Green


308


427


" vs Hearn


101


223


Rowland vs Bennett


329


223


" vs Hicktnan


478


173


Rules of Court


452



VI



TABLE OF CASES.



Runyan va Dickenson
Railroad Co., Bailey vs


243
389


Stean vs Anderson
Stove vs Jones


u " Burton va


252


Stuarts vs Reynolds


" " McHenry v


448


Savin, State vs


Randblph & Co., Draper tw


454


Schlemn, State vt


Records, State va


554


Shannon, Eccles vt


Reynolds, Smith va


112


Shields, Inskeep vi


u Stuarts tw


112


Shockley, West vs


Revill, Truitt tw


71


" Prettyman tw


Rogers, State tw


154


Short, Burton vs


Ross, Hearn tw


46, 101


Smith, Davis vs


Ruth, Macklin tw


87


" Allen vs






" Miles vs


S.




Smyth, Brown vs






Spicer, Barker vs


Saunders vs Millward


246


Springer, Lindsay vs


Savin vs Savin


56


Spruance, Cummins, vs


Scotten vs Brown


324


" Bishop vs


Sharpley vs Townsend


336


" Houston vs


Short vs Pepper et al.


181


" Redden vs


" vs The State


568


Stafford, Glazier vs


Shute and Wife r* Gould


203


State, Hall vs


Silver Run Co. tw Stewart


82


u Layton vs


Simmons' use va Gould


203


" Short vs


Smith's case


554


Steel, Collins vs


Smith vs Johnson


541


Stuart, Townsend vs


" vs Reynolds


112


Stewart, Jefferson vs


" vs Smith's Ex'x.


532


" Silver Run Co. vs


" et ux. vs Dolby


350




Solomon vs Loper et al.


187


T.


State vs Bostick


563




" vs Burchinal


572


Temple's use vs Huxley


" vs Burris


582


Tilghman vs Cruson


" vs Buzine


572


Townsend vs Griffin


" vs Frames


569


" vs Stuart


" vs Frest


557


Truitt vs Revill


" vs Harten


582


Tubb vs Lynch


" vs Handy


566


Tyre vs Caussey


" vs Marker


559


Temple, Gilpiri vs


" vs Harten


582


" Johnson vs


" vs Jeans


570


Thawley, State vs


" vs Koch


570


Thomas, Staters


" vi McDonald


555


Townsend. Sharpley vs


" vi Mousely


553


Tunnell, Lynch 's ex'x. vs


" vs Newport


567


" Burton vs


" tw Porter


556




" vi Platt


154


U.


" vs Rogers


154




u vs Records


554


Underwood vs Jeans


" vs Schlemn


577


Updike, State vs


" vt Thaw ley


562




" vt Thomas


568


W.


" vi Updike


581




State, use of vs Layton


512


Wallace's lessee vs Lewis


w " vs Fowler


358


Wall's lessee vs Magee


" " vs Huxley


343


Waterman vs Barratt


" " r Savin


56


Watson vs Lofland


" " v* Warrington


5- r >


Weiser vs Boys et al.


u tw Whitaker


527


Webb vs Pindergrass


Stayton vi Morris


224, 357


Wests vs Houston


Steamboat Co. vs Whilldin


228


" vs Shockley



209
255
112
56
577
193
345

108, 287
112
38
68
234
244
204
348
547
315
114
117

217,265

240

132

9

568

536

94

82

82



343
341
440
94
71
521
425
190
446
562
568
336
284
424



201
581



75

108
311
60
249
439
170
108



TABLE OF CASES.



Vll



West v* Shockley et al.
Wilson vs Cochran

" vs Hudson

" vs Levy Court

" vs Marshall
Wolfe vs Gardner et al.
" vs Heathers
" vs Whiteman
Wright vs Hobson
Warrington, Pepper vs
Waples, Burton vs

" Bank vs

li ex., Prettyman vs



287

88

168

88

64

338

325

245

382

55

73

429

299



Waples, Bank vs 429

Wharton, Burton vs 296

Whilldin, Steamboat Co. vs 228

Whitaker, Parker vs 527

Whiteman, Wolfe vs 245

Williamson, Maybin vs 434

Wise, Haines vs 243

Wolfe, Burton vs 221

Y.

Yarnall vs Haddaway 437



REPORTS.



THIS Volume contains the adjudged cases from the June Term,
1843, to the Fall Sessions, 1847, inclusive ; during which time the
Court consisted of

Hon. KENSEY JOHNS, JR., Chancellor.

Hon. JAMES BOOTH, Chief Justice.

Hon. SAMUEL M. HARRINGTON, Associate Judge.

Hon. CALEB S. LAYTON, Associate Judge; resigned July 22, 1844.

Hon. JOHN J. MILLIGAN, Associate Judge.

Hon. DAVID HAZZARD, Associate Judge; appointed Dec. 10, 1844:

resigned Sept. 10, 1847.
HON. EDWARD WOOTTEN, Associate Judge ; appointed Sept. 16, 1847.

EDWARD W. GILPIN, ESQ., Attorney General.



COURT OF ERRORS AND APPEALS.

JUNE TERM,

1843.



WILLIAM H. JONES, et al. complt's below, applt's vs. DAVID BUSH,
P. WEYANT, H. MOORE, J. RUSH, E. FENNEL, D. HARTLEY,

et al. resp'ts.

A deed executed with the usual formalities, acknowledged by the grantor before a
judge, and put on record by the grantor's orders, held void for want of delivery ;
it being clearly proved that the deed never was delivered in fact, and that it never
was the grantor's intentions to deliver it, only on a contingency that never happened.

A complainant in equity cannot have relief as on a case not stated by his bill. Under
the general pray er, other relief may be decreed than that specifically sought ; but it
musl be consistent with the case presented.

A deed to A. B. and C. their heirs, &c., in trust for the only proper use of the grantor*
during life, and then for the use of their grand-children, conveys the legal estate a*
an executed use, in the cestuis que use, and is not a trust estate in the grantees.

APPEAL from the decree of the chancellor. Before all the law
judges.

The bill stated that Isaac Jones, of Wilmington, the grand-father
of complainants, on the 18th of January, 1826, for the purpose of
settling his estate and making provision for his family, and being
seized of a large real estate in Delaware and elsewhere, did make,
execute and deliver, a certain deed, whereby for the consideration of
one dollar, he granted and conveyed unto David Bush, William
Larkin and William Keay, their heirs and assigns, in trust to and for
the uses thereinafter declared, certain tracts of land, &c., " to have
and to hold the same unto the said B. L. & K., their heirs and
assigns in trust, for the only proper use and behoof of the said
Isaac Jones and Sarah his wife, for and during their natural lives
and the life of the survivor of them, and upon the decease of the sur-
vivor of them, then to and for the only proper use, behoof and benefit
of all the children which the said Isaac Jones' son, Isaac H. Jones,
then had, or thereafter should have, as tenants in common in fee
simple, their heirs and assigns forever ; subject, however, to the pay-

VOL. iv. 1



2 JONES ET AL. PS. BUSH ET AL.

ment of $1,000 to each and every of the children which the said
Isaac Jones' son, John C. Jones, then had or thereafter might have
as follows, <fec. &c., and to each of the children of the said Isaac
Jones' deceased daughter, Deborah, in the same manner as to the
children of the said John C. Jones, and for no other use, intent or
purpose whatever;" which said deed was afterwards duly acknow-
ledged and recorded: that it is in the custody or control of de-
fendants, or some of them, who refuse to produce it. Isaac Jones
died on the 29th December, 1829, no re-conveyance or re-transfer of
the property embraced in the deed, having been made to him. Sarah
Jones, his wife, died before him. At the time of his death and at the
filing of this bill, John C. Jones had four children, (the plaintifls
being two of them.) Isaac H. Jones had three children at that time,
two of whom, and the representatives of the third, are defendants.
William Larkin and William Keay, two of the grantees in the deed,
died in 1829, before the death of Isaac Jones, the grantor. David
Bush declined acting as trustee after Isaac Jones' death ; and the
property went into possession of Weyant, Moore and others, (de-
fendants) as grantees of Isaac H. Jones, who took possession as
devisee under an alleged will of Isaac Jones ; Isaac Rush, Fennel,
Hartley and the other defendants, are claiming as grantees from
John C. Jones, claiming that Isaac Jones died intestate, and denying
both will and deed.

The bill prayed that the said deed may be established, and the
trusts thereof performed and carried into execution by the decree of
the court of chancery ; that the said David Bush may be compelled
to refuse or accept the trust, and in case of his refusal, to convey
the legal estate in the property conveyed by said deed, to such trus-
tee as the court may appoint, that the money due complainants under
said deed, may be decreed to be raised out of the property thereby
conveyed, and for further relief.

The answers admitted the making and execution of the deed, of
1826, but denied that it was ever delivered, its intent being solely to
avoid certain liabilities supposed to be incurred by the said Isaac
Jones for his son, Isaac II. Jones, (who was his partner as a tobac-
conist, and who was supposed to have given the notes of the firm in
certain gambling lottery ventures) and to protect his property against
his said son's creditors ; for which same purpose he executed a deed
to Thomas R. Tunis for his Philadelphia property, which was after-
wards reconveyed to him. Isaac Jones always considered said deed
as a mere form, made for the purposes aforesaid, and so declared to



JONES ET AL. vs. BUSH ET AL. 3

the trustees ; it was kept in his possession, and never was in the pos-
session of, or seen by, either of the grantees, who never accepted the
trust, or agreed to act under it : none of the persons named or alluded
to in it, were present at its execution. Isaac Jones always remained
in possession of the estate, and the real objects of the deed were
avowed and well understood by all the parties interested. The deed
is not in the possession of these defendants, but of one of their counsel,
and they do not know how or from whom he got. it.

The answer of David Bush, alledged that the deed was never de-
livered to him, and he never accepted the trust. He believes it re-
mained in the possession of Isaac Jones, who told him" he made it
for fear of certain liabilities in which his son Isaac H. Jones might
have involved him, and to meet that contingency; and it was mere
form; and he afterwards told this defendant that the difficulties had
not occurred, and the deed was of no effect.

The other defendants denied the execution and delivery of this
deed, and pleaded that they are purchasers from John C. Jones, for
a valuable consideration without notice.

The chancellor decreed dismissing the complainants' bill.

Extracts from the depositions:

Isaac H. Jones. The deed was found in possession of Archibald
Hamilton, Esq., after the death of Isaac Jones. William Keay was
more intimate with Isaac Jones than Bush or Larkin. Has heard
William Keay say, this deed was all a sham. Heard Isaac Jones
say, this deed was made for the purpose of securing his property
from attachment.

John Elliott. Bush, Larkin and Keay, were intimate friends of
Isaac Jones, Keay the most intimate. Has heard Mr. Hamilton say,
he had the deed.

Matthew Kean. Isaac Jones himself handed this deed to me as re-
corder, to be recorded, and took it away with him again.

Jonas P. Fairlamb. Was employed by Isaac Jones to write the
deed of trust to Bush, Larkin and Keay, and is the subscribing wit-
ness. At the time it was signed it was not delivered, nor do I know
that it was ever delivered. I kept it at Jones' request, and for him,
for a month or more, and then gave it to him, or left it in the record-
er's office to be recorded. At the time of signing the deed, Isaac Jones
declared he made it to prevent Pennsylvania creditors of his son from
getting his property, but did not say he should retain the deed ; and I
can't say that he declared the deed was not to be used for any other
purpose. He often made this declaration before and after the signing,



4 JONES ET AL. vs. BUSH ET AL.

as well as at the time the deed was executed, as deeds usually are,
when but one party is present, the grantor saying, that he signed,
sealed and delivered the the deed for the purposes therein mentioned.

David Bush. The deed was never delivered to me or to Larkin
and Keay, that I know of. Isaac Jones applied to me, to suffer my
name to be inserted in a deed of trust, with L. & K., to secure his Dela-
ware creditors against certain Pennsylvania creditors. Jones pro-
mised we should have no trouble. I consented that my name should
be used, but never acted under the trust, and never saw the deed ;
and do not know that L. or K. ever did. Jones told me afterwards
that "he had his business settled, and it was all right."

Clayton and Bates, for appellants contended: 1st. That the deed
from Jones and wife, to Bush, Larkin and Keay, was not a trust deed,
but an executed use conveying the legal title to the cestuisque use, by
force of the stat. of uses. (3 Law Lib. 24 ; Corn, on Uses 56 ; 20 Law
Lib. 49; Walk. Con. 142; 24 Law Lib. 52; Lew. Tr. 102.)

The very object of the statute of uses (27 Hen. 8J was to execute
such a use as this. Modern trusts have grown out of the statute by
evasion of it, and no use can operate as a trust that does not avoid
the statute. A trust cannot be created v&ithout raising a use in the
trustees first, and then in the cestuis que use, that is a use on a use;
for the statute always executes the first use, no matter what the in-
tention of the party making it. (1 Cruise 411,453,400, 165; 2
Blac. Com. 333; 2 Salk. 679, Brovghton vs. Langley.)

Under this deed, Isaac Jones and wife, the grantors, took an es-
taie during their joint lives, and the life of the survivor, with a vested
remainder in all their grand-children then in esse; and as to any
other children of Isaac H.Jones and John C. Jones, it was a con-
tingent use, dependent upon their coming into existence during the
life time of their fathers. The first estate in Isaac Jones and wife,
the grantors, is not merely a joint estate, but an anomalous estate
peculiar to husband and wife, who are seized in entireties each per
tout as well as per my, which neither can sever. Bush, Larkin and
Keay the nominal trustees ; took nothing, they were the mere con-
duit pipes, "the lightening rods" through which the legal estate passed
instantaneously into the cestuis que use.

Isaac H. Jones, and wife being thus seized of the legal estate under
their own deed, there was no necessity for a formal delivery of the
deed to Bush, Larkin and Keay, in order to its validity. The re-
taining possession of it by Isaac Jones himself, so far from being
evidence of non-delivery is consistent with the full operation of the



JONES ET AI. vs. BUSH ET AL. 5

deed ; for it was properly in his custody as one of the grantees, to
use.

The deed operated, and was so intended, as a family settlement,
made by Isaac Jones, and completed as fully as he could complete
it, signed, sealed, admitted to be delivered, acknowledged and re-
corded, but retained in his possession, because he was entitled to it:
which is evidence of the delivery.

A voluntary deed in favor of younger children, without a power
of revocation, cannot be revoked even by will. (Sear vs. Ashwell, 3
Swanst. Rep. 411, 412; Bolton vs. Bolton, 76.414, 415; 2 Fern. 402;
Clavering vs. Claoerivg.)

If this were a trust deed, as it has heretofore uniformly been con-
sidered, it was fully executed and is valid. The acknowledgment
and recording of a deed, is not only prima facie evidence, but con-
clusive evidence of delivery. (16 Peters' Rep. 106, 118, Tompkins
vs. Wheeler; 30 Law Lib. 122; Shep. Touch. 57-8; 3 Swanst. 411-12;
5 B. $ Cress. 67 1 ; Dig. 90, sec. 2 ; 2 Harr. Rep. 200. The act of re-
cording, put the deed in the custody of the law, for purposes incon-
sistent with any idea that it was not a perfect deed ; and to that ex-
tent out of the grantor's power. The record is evidence of the de-
livery without other proof.

The facts that prove the delivery and the intention that it should
operate are IsU Jones consulted Bush, and obtained his consent to
act as trustee. 2d. He procured the deed to be drawn and signed,
sealed and said he delivered it as his deed for the uses and purposes
therein mentioned. 3d. He acknowledged it as his deed, before judge
Way. 4th. A month after, he had it recorded as his deed, and
without qualification, and 5th. It was afterwards found out of his



Online LibraryDelaware. Superior CourtReports of cases argued and adjudged in the Superior court and Court of errors and appeals of the state of Delaware : from the organization of those courts under the amended constitution [1832-1855], with references to some of the earlier cases, published at the request of the General Assembly (Volu → online text (page 1 of 63)