delivery after the grantor's death is of no effect.-Roose- 1055. A grant duly executed is presumed to have Date. been delivered at its date. NOTE.-Bagley vs. McMickle, 9 Cal., p. 430; Bensley vs. Atwill, 12 Cal., p. 231; Bar vs. Schroeder, 32 Cal., p. 610; Fitch vs. Bunch, 30 Cal., p. 208; Harris vs. Norton, 16 Barb., p. 264. grantee is absolute. 1056. A grant cannot be delivered to the grantee Delivery to conditionally. Delivery to him, or to his agent as necessarily such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made. NOTE.-Delivery to him.-Brannan vs. Bingham, 26 N. Y., p. 483; Worrall vs. Munn, 5 N. Y., p. 229. Where one person is agent of both parties, delivery to him is not necessarily absolute.-Iliff vs. Cincinnati, etc., R. R., 13 Ohio St., p. 235. escrow. 1057. A grant may be deposited by the grantor Delivery in with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow. NOTE.-Where a deed is placed in the hands of a third person as an escrow, with an agreement that it shall not be delivered to the grantee until he has complied with certain conditions, the grantee does not acquire any title to the land, nor is he entitled to a delivery of the deed, until he has strictly complied with the conditions.-Dyson vs. Bradshaw, 23 Cal., p. 528. If the grantor deposit with a third person a deed, to be by such person delivered to the grantee upon the order of an agent of the grantor, and before the agent gives such order the grantor directs the third person not to deliver the deed, his authority to deliver ceases.-Fitch vs. Bunch, 30 Cal., p. 208. A deed so deposited is not an escrow, as it is deemed in law to be still in the possession of the grantor.-Id. To make the deed an escrow, the parties must have bargained and sold, and performed every act necessary to constitute a complete contract, and the deed must then be deposited with a third person, to be delivered to the grantee upon the performance by him of some condition. It must be no longer under the control of the grantor.-Id.; see, also, Beam vs. McKusick, 10 Cal., p. 538. 1058. Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title. NOTE.-If the title to land is passed by the execution and delivery of a deed, it cannot afterwards be divested by the surrender and destruction of the deed.-Bowman vs. Cudworth, 31 Cal., p. 148; Snodgrass vs. Pickett, 13 Cal., p. 359; Kearsing vs. Kilian, 18 Cal., p. 491; Killy vs. Willson, 33 Cal., p. 691; Lawton vs. Gordon, 34 Cal., p. 36; Byron vs. Bradshaw, 23 Cal., p. 528. 1059. Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases: 1. Where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery; or, 2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed. Gratuitous grants take effect immediately; NOTE. The delivery of a conveyance is a question of fact to be determined by the jury, and depends more upon the intention of the parties than upon the mode of fulfilling that intention.-Hastings vs. Vaughn, 5 Cal., p. 513; see, also, Bensley vs. Atwill, 12 Cal., p. 231; Barr vs. Schroeder, 32 Cal., p. 610; Bagley vs. McMickle, 9 Cal., p. 430. 1060. A grant made as a mere gratuity takes effect upon its execution, even though the grantor exception. retains possession, unless a contrary intention appears. NOTE.-Loverbye vs. Arden, 1 Johns. Ch., p. 240; Bunn vs. Winthrop, Id., p. 329; Roosevelt vs. Carew, 6 Barb., p. 190. ARTICLE IV. INTERPRETATION OF GRANTS. SECTION 1066. Grants, how interpreted. 1067. Limitations, how controlled. 1068. Recitals, when resorted to. 1069. Interpretation against grantor. 1070. Irreconcilable provisions. 1071. Meaning of "heirs" and "issue," in certain remain ders. 1072. Words of inheritance unnecessary. how 1066. Grants are to be interpreted in like manner Grants, with contracts in general, except so far as is otherwise interpreted provided in this Article. NOTE. The first step in the construction of a deed is to ascertain the intention of the parties; and to arrive at this intention, the situation of the parties and subject matter at the time of its execution should be considered. The whole deed should be taken together, and effect should, if possible, be given to all of its parts, although the immediate object of inquiry be the meaning of an isolated clause.-Brannan vs. Mesick, 10 Cal., p. 95; Mulford vs. Le Franc, 26 Cal., p. 111. The words "northerly," "southerly," "easterly," westerly," mean due courses, unless controlled by other words, or by natural objects.-Bosworth vs. Dantiew, 25 Cal., p. 296; Fratt vs. Woodward, 32 Cal., p. 219; Colton vs. Seavey, 22 Cal., p. 496. The grantor has a right, by a clause inserted in the deed, to set aside the general sense of the words he uses, and to assign to them another and different meaning.-Morrison vs. Wilson, 30 Cal., p. 344. 99 66 1067. A clear and distinct limitation in a grant is Limitanot controlled by other words less clear and distinct. NOTE.-Nicoll vs. N. Y. & Erie R. R. Co., 12 N. Y., p. 129; Jewett vs. Jewett, 16 Barb., p. 150; tions, how controlled. 1068. If the operative words of a grant are doubt- Recitals, ful, recourse may be had to its recitals to assist the resorted to construction. NOTE.-Ringer vs. M'Cann, 3 M. & W., p. 343; when Interpretation against grantor. Irreconcilable 1069. A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor. NOTE.-Deeds are to be construed most strongly against the grantor when there is any uncertainty or ambiguity in their terms.-Dodge vs. Walley, 22 Cal., p. 224; Vincent vs. Spicer, 22 Beav., p. 383; Jackson vs. Gardner, 8 Johns., p. 394; Jackson vs. Blodgett, 16 Johns., p. 172. But reservations in a deed are to be construed in favor of the grantor.-Bowes vs. Ravensworth, 15 C. B., p. 512. The rule first stated in this note does not apply to grants made by a public officer or body to an individual. In such a grant it is presumed that all uncertainty was caused by the grantee, and therefore the language used is construed in favor of the grantor.-Stourbridge Canal Co. vs. Wheely, 2 B. & Ad., p. 792; Jackson vs. Reeves, 3 Cal., p. 293; Gildart vs. Gladstone, 11 East., p. 675; see Mohawk Bridge Co. vs. Utica & Schen. R. R. Co., 6 Paige, p. 554; Hull Dock Co. vs. La Marche, 8 B. & C., p. 42. 1070. If several parts of a grant are absolutely provisions. irreconcilable, the former part prevails. Meaning of Words of inheritance. unnecessary. NOTE.-Havens vs. Dale, 18 Cal., p. 359; Jewett vs. Jewett, 16 Barb., p. 157. 1071. Where a future interest is limited by a grant to take effect on the death of any person without heirs, or heirs of his body, or without issue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor. NOTE.-Stats. 1855, p. 171, Sec. 2; Norris vs. Beyea, 13 N. Y., p. 273; Tyson vs. Blake, 22 N. Y., p. 558. 1072. Words of inheritance or succession are not requisite to transfer a fee in real property. NOTE.-Stats. 1855, p. 171, Sec. 3. ARTICLE V. EFFECT OF TRANSFER. SECTION 1083. What title passes. 1084. Incidents. 1085. Grant may inure to benefit of stranger. passes. 1083. A transfer vests in the transferee all the What title actual title to the thing transferred which the transferrer then has, unless a different intention is expressed or is necessarily implied. NOTE-Nicoll vs. N. Y. & Erie R. R. Co., 12 N. Y., p. 121; Wooster vs. Sherwood, 25 N. Y., p. 278; Wheelwright vs. De Peyster, 1 Johns., p. 471; Sage vs. Cartwright, 9 N. Y., p. 49; Warren vs. Leland, 2 Barb., p. 624. 1084. The transfer of a thing transfers also all its Incidents. incidents, unless expressly excepted; but the transfer of an incident to a thing does not transfer the thing itself. NOTE.-Everything essential to the beneficial enjoyment of the property, in the absence of language indicating a different intention on the part of the grantor, passes to the grantee.-Sparks vs. Hess, 15 Cal., p. 186; Battle vs. Coit, 26 N. Y., p. 404; Lampman vs. Milks, 21 id., p. 505; Huttemeier vs. Albro, 18 id., p. 48; Leroy vs. Platt, 4 Paige, p. 77; Bowdoin vs. Coleman, 6 Duer, p. 182; 3 Abb. Pr., p. 431; Langdon vs. Buel, 9 Wend., p. 80; Jackson vs. Blodgett, 5 Cow., p. 202; Green vs. Hart, 1 Johns., p. 580; see Rose vs. Baker, 13 Barb., p. 230. But the transfer of the incident to a thing does not transfer the thing itself.-Kellogg vs. Smith, 26 N. Y., p. 18; Battle vs. Coit, 26 N. Y., p. 404; see Nostrand vs. Durland, 21 Barb., p. 478. 1085. A present interest, and the benefit of a condition or covenant respecting property, may be taken by any natural person under a grant, although not named a party thereto. Grant may benefit of inure to stranger. |