Thus, there is an effective delivery where the grantor causes the written instrument to be recorded, or leaves it with the proper officer for recording with the intention that it thereby shall pass title to the grantee according to its purport and tenor, and the act of the grantor is accompanied or followed by the assent of the grantee. Robbins v. Rascoe, 120 N.C. 79, 26 S.E. 807, 38 L.R.A. 238, 58 Am. St. Rep. 774; Phillips v. Houston, 50 N.C. 302; Ellington v. Currie 40 N.C. 21; Snider v. Lackenour, 37 N.C. 360. In such cases, assent on the part of the grantee is presumed until the contrary is shown if the conveyance be beneficial to him.
But it will be otherwise if the grantor or donor retain any (63) control over the deed; as if he, when he hands it to a third person, request him to keep it and deliver it to the person for whom it is intended, unless he shall call for it again. These principles will be found to govern all the cases, beginning with Tate v. Tate, 21 N.C. 22, running through Baldwin v. Maultsby, 27 N.C. 505; Snider v.Lackenour, 37 N.C. 360; Ellington v. Currie, 40 N.C. 21; Roe v. Lovick, 43 N.C. 88; Gaskill v. King, 34 N.C. 211; and Newlin v. Osborne, 49 N.C. 157, and down to Airey v. Holmes, ante, 142. Tried by the above mentioned test, the delivery of the deed, in the present case, must be declared to be complete. The donor handed the paper, signed and sealed, to a third person, for the use of the donee, without any reservation whatever, and when it was returned to her she immediately handed it to another person, for the donee, without the slightest intimation that she was to have any control over it. The delivery, however, was perfect when the instrument was handed to the first person, and it made no difference whether it was registered before or after the donor's death.
There is no allegation nor suggestion in the complaint that the plaintiffs are creditors of the grantor or purchasers for value, etc.; they claim only as heirs at law, and, this being true, plaintiffs are concluded by the deed of their ancestor; as to them, the defendants acquired a good title. Saunders v. Lee, 101 N.C. 3; Ellington v. Currie, 40 N.C. 21; Waite on Fraudulent Conveyances, sec. 121; Reynolds v. Faust, 179 Mo., 21; Campbell v. Ross, 187 Ill. 553. In the citation from Waite, supra, the author says: "The heir of a grantor cannot impeach his ancestor's deed on the ground that it was made in fraud of creditors, for he can claim no right which the ancestor was estopped from setting up.
But when the deed, properly executed, is found out of the possession of the maker and in the possession of some other person, then the law presumes the fact to be that it was intentionally delivered to or for the grantee. Snyder v. Lackenour, 37 N.C. 360; 38 Am. Dec., 685; Ellington v. Currie, 40 N.C. 21; Airey v. Holmes, 50 N.C. 142; Phillips v. Houston, 50 N.C. 302; Robbins v. Rascoe, 120 N.C. 79; 38 L.R.A., 238; 58 Am. St., 774. But if the deed passed out of the maker's possession by accident, fraud or mistake, or was not intended to be delivered to the grantee or any one for him, then such presumption of the fact of delivery may be rebutted.
These admitted facts are all consistent with the fact that the grantor retained a life estate, and, taken alone, have no tendency to rebut the implication of delivery arising from the registration. In a case "on all fours" with the present, it was held by this Court that where the donor went into court and acknowledged a deed of gift for the purpose of registration and it was accordingly registered, that was a delivery, and that any subsequent declaration that it had not been delivered and was not to have effect did not invalidate it. Airey v. Holmes, 50 N.C. 142; Ellington v. Currie, 40 N.C. 21. These cases dispose of the defendants' exceptions to the exclusion (755) of their proposed evidence.
In Triplett v. Witherspoon, 74 N.C. 475, the Court said: "Equity will not interfere to set up any transaction founded in fraud; certainly not against a purchaser for value, but will leave the parties to their legal rights." In Ellington v. Currie, 40 N.C. 21, upon a bill to avoid a (540) deed made to defraud creditors the Court said: "Equity will not interfere with the operation of the statute at the instance of either party to a fraudulent conveyance." In York v. Merritt, 77 N.C. 213, the action was by the grantee against the grantor for possession of the land conveyed to defraud creditors.