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The transferring of a deed from the grantor to the grantee in such a manner as to deprive him of the right to recall it, or the delivery may be made and accepted by an attorney. This is indispensably necessary to the validity of a deed except for the deed of a corporation, which must be executed under their common seal. But although, as a general rule the delivery of a deed is essential to its perfection, it is never averred in pleading.
As to the form, the delivery may be by words without acts; such as if the deed be lying upon a table, and the grantor says to the grantee, 'take that as my deed'; or it may be by acts without words, and therefore a dumb man may deliver a deed.
A delivery may be either absolute, as when it is delivered to the grantor himself; or it may be conditional, such as to a third person to keep until some condition shall have been performed by the grantee, and then it is called an escrow.
Contracts. The transmitting the possession of a thing from one person into the power and possession of another.
Originally, delivery was a clear and unequivocal act of giving possession, accomplished by placing the subject to be transferred in the hands of the buyer or his avowed agent, or in their respective warehouses, vessels, carts, and the like. This delivery was properly considered as the true badge of transferred property; as importing full evidence of consent to transfer; preventing the appearance of possession in the transferrer from continuing the credit of property unduly; and avoiding uncertainty and risk in the title of the acquirer.
However, the complicated transactions of modern trade render strict adherence to this simple rule impossible. It often happens that the purchaser of a commodity cannot take immediate possession and receive the delivery. The bulk of the goods; their peculiar situation, as when they are deposited in public custody for duties, or in the hands of a manufacturer for the purpose of having some operation performed upon them; the frequency of bargains concluded by correspondence between distant countries and many other obstructions, frequently render it impracticable to give or receive actual delivery. In such cases, something short of actual delivery has been considered sufficient to transfer the property.
In sales, gifts, and other contracts, where the party intends to transfer the property, the delivery must be made with the intent to enable the receiver to obtain dominion over it. The delivery may be actual, by putting the thing sold in the hands or possession of the purchaser; or it may be symbolical, as where a man buys goods which are in a room, the receipt of the keys will be sufficient.
There is sometimes considerable difficulty in ascertaining the particular period when the property in the goods sold passes from the vendor to the vendee; and what facts amount to an actual delivery of the goods. Certain rules have been established, and the difficulty is to apply the facts of the case.
Where goods are sold, if nothing remains to be done on the part of the seller as between him and the buyer before the article is to be delivered, the property has passed.
Where a chattel is made to order, the property therein is not vested in the quasi vendee until finished and delivered, though he has paid for it.
The criterion to determine whether there has been a delivery on a sale is to consider whether the vendor still retains, in that character, a right over the property.
Where a part of the goods sold by an entire contract has been taken possession of by the vendee, that shall be deemed a taking possession of the whole. Such partial delivery is not a delivery of the whole so as to vest in the vendee the entire property in the whole, where some act, other than the payment of the price, is necessary to be performed in order to vest the property.
Where goods are sent by order to a carrier the carrier receives them as the vendee's agent.
A delivery may be made in a very slight manner; as where one buys goods which are in a room, the receipt of the key is sufficient.
The vendor of bulky articles is not bound to deliver them, unless he stipulated to do so; he must give notice to the buyer that he is ready to deliver them.
A sale of bricks in a brick-yard, accompanied with a lease of the yard until the bricks should be sold and removed, was held to be valid against the creditors of the vendor, without an actual removal.
Where goods were contracted to be sold upon condition that the vendee should give security for the price, and they are delivered without security being given, but with the declaration on the part of the vendor that the transaction should not be deemed a sale until the security should be furnished; it was held that the goods remained the property of the vendor, notwithstanding the delivery. But it seems that in such cases the goods would be liable for the debts of the vendee's creditors, originating after the delivery; and that the vendee may, for a bona fide consideration, sell the goods while in his possession.
Where goods are sold to be paid for on delivery, if on delivery, the vendee refuses to pay for them, the property is not divested from the vendor.
If the vendor rely on the promises of the vendee to perform the conditions of the sale and deliver the goods accordingly, the right of property is changed; but where performance and delivery are understood to be simultaneous, possession obtained by artifice, will not vest a title in the vendee.
Where, on the sale of a chattel, the purchase money is paid, the property is vested in the vendee, and if he permit it to remain in the custody of the vendor he cannot call upon the latter for any subsequent loss or deterioration not arising from negligence.
Med. Jur. Child-birth. The act of a woman giving birth to her off-spring.
It is frequently of great importance to ascertain whether or not a delivery has taken place, and the time when it took place. Delivery may be considered with regard, 1. To pretended delivery. 2. To concealed delivery.
In pretended delivery, the female declares herself to be a mother, without being so in reality; an act always prompted by folly or fraud.
Pretended delivery may present itself in three points of view: 1. When the female who feigns has never been pregnant. When thoroughly investigated, this may always be detected. There are signs which must be present, and cannot be feigned. An enlargement of the orifice of the uterus, and a tumefaction of the organs of generation, should always be present, and if absent, are conclusive against the fact. 2. When the pretended pregnancy and delivery have been preceded by one or more deliveries. In this case, attention should be given to the following circumstances: the mystery, if any, which has been affected with regard to the situation of the female; her age; that of her hushand and particularly whether aged or decrepid. 3. When the woman has been actually delivered, and substitutes a living for a dead child. But little evidence can be obtained on this subject from a physical examination.
Concealed delivery generally takes place when the woman either has destroyed her offspring, or it was born dead. In suspected cases, the following circumstances should be attended to: 1. The proofs of pregnancy which arise in consequence of the examination of the mother. When she has been pregnant, and has been delivered, the usual signs of delivery, mentioned below, will be present. A careful investigation as to the woman's appearance, before and since the delivery, will have some weight, though such evidence is not always to be relied upon, as such appearances are not unfrequently deceptive. 2. The proofs of recent delivery. 3. The connexion between the supposed state of parturition, and the state of the child that is found; for if the age of the child does not correspond to that time, it will be a strong circumstance in favor of the mother's innocence. Whether the child was living at its birth, belongs to the subject of infanticide.