nsideration and in order to enable the fraud to be carried into effect; (5) That the fraud was of such character as to enable a court of equity to decree the relief as against the covenantor, not only under his own name, but under the name of his wife; (6) That as the contract was binding at the time of Monroe's death, his heirs had the right to compel specific performance; (7) That there was no sufficient proof that the deed of Moore to Monroe was set aside by consent, and the purchase abandoned by Monroe; (8) That the defence of laches, if available at all, was not made out; (9) That the allegations of the bill as amended were sufficient to support the decree. Mr. Daniel H. Ball and Mr. Irving D. Hanscom, for appellants, cited: Piatt v. Vattier, 9 Pet. 404; Bumpus v. Bumpus, 53 Mich. 346; Whiting v. Butler, 29 Mich. 122; Trask v. Green, 9 Mich. 358; Groesbeck v. Seeley, 13 Mich. 329; Palmer v. Sterling, 41 Mich. 218; Weare v. Linnell, 29 Mich. 224; Garfield v. Hatmaker, 15 N.Y. 475; Everett v. Everett, 48 N.Y. 218; Stebbins v. Morris, 23 F. 300; Bond v. Hopkins, 1 Sch. Lef. 413, 429; Lantry v. Lantry, 51 Ill. 458; Walker v. Hill, 21 N.J. Eq. 191; Hoge v. Hoge, 1 Watts, 163; S.C. 26 Am. Dec. 52; Peckham v. Balch. 49 Mich. 179; Scott v. Bush, 26 Mich. 418; Raub v. Smith, 61 Mich. 543; Glass v. Hurlbert, 102 Mass. 24; Dung v. Parker, 52 N.Y. 494; Hutchins v. Hutchins, 7 Hill, 104; King v. Morford, Saxton (1 N.J. Eq.) 274; Maxfield v. Terry, 4 Delaware Ch. 618; Truesdail v. Ward, 24 Mich. 465; Peake v. Thomas, 39 Mich. 584; Cox v. Cox, 26 Penn. St. 375; S.C. 67 Am. Dec. 432; Bomier v. Caldwell, 8 Mich. 463; Texas v. Hardenberg, 10 Wall. 68. Mr. John F. Dillon, for appellants, cited: Aveling v. Knipe, 19 Ves. 441; Bartlett v. Pickersgill, 1 Eden, 515 ( semble); Smith v. Garth, 32 Ala. 368; McCue v. Gallagher, 23 Cal. 51; Loomis v. Loomis, 28 Ill. 454; Hubble v. Osborn, 31 Ind. 249; Jackson v. Stevens, 108 Mass. 94; Gibson v. Foote, 40 Miss. 788; Botsford v. Burr, 2 Johns. Ch. 405; Trask v. Green,

His acceptance, to the extent of making inflexible the intention and delivery of the owner, is presumed. The decision in Baker v. Haskell ( 47 N.H. 479) conflicts with this rule, which is, however, established in this jurisdiction ( Everett v. Everett, 48 N.Y. 218; Spencer v. Carr, 45 N.Y. 406; Munoz v. Wilson, 111 N.Y. 295), and in many others. The evidence must show that the owner intended in the delivery to divest himself of his right to withdraw, revoke or control the instrument as completely as though he were delivering it to the person named as grantee, and by words or act expressly or impliedly acknowledged his intention.

See the cases cited to this effect in the note to the case of Munro v. Bowles, 54 L.R.A. 865, 871, 872 ( 187 Ill. 346); Porter v. Woodhouse, 59 Conn. 568. A delivery so made and accepted by the grantee is irrevocable by the grantor, and cannot by him be recalled, or revoked or modified, without the consent of the grantee. Arnegaard v. Arnegaard, 7 N.D. 475; Bury v. Young, 98 Cal. 446; Issitt v. Dewey, 47 Neb. 196; Everett v. Everett, 48 N.Y. 218; 16 Cyc. 568, and cases there cited. We think the facts found in the case at bar clearly show that the delivery of deed A to Mr. Pierce was in effect a present delivery of it, to be held by him for the benefit of the grantee and subject to the life use of the grantor, and at her death to be surrendered by him to such grantee.

         The delivery of the deed under which the defendants claim to Aughinbaugh, for the use and benefit of E. S. Chipman, operated to pass the title at the time of the delivery to the former. (Schroeder v. Gurney , 73 N.Y. 430; Everett v. Everett , 48 N.Y. 218; Cecil v. Beaver, 28 Iowa 241; Tallman v. Cooke, 39 Iowa 402; Mather v. Corliss , 103 Mass. 568; Jones v. Swayze , 42 N. J. L. 279; Ruckman v. Ruckman , 32 N. J. Eq. 259; Black v. Hoyt, 33 Ohio St. 203; Mitchell v. Ryan, 3 Ohio St. 377; Merrills v. Swift , 18 Conn. 257; Tibbals v. Jacobs , 31 Conn. 428; Burt v. Cassety , 12 Ala. 734; Rawson v. Fox , 65 Ill. 200; Ernst v. Reed, 49 Barb. 367; Hastings v. Vaughn , 5 Cal. 513.) The deed being beneficial to the grantee, his assent thereto is presumed.

In McCartney v. Bostwick ( 32 N.Y. 53, 59) it is again said that "No interest whatever, either legal or equitable, inured to the party paying the price; and he had no remaining right on which, through judgment and execution, creditors could by any process fasten a specific lien." In Everett v. Everett ( 48 N.Y. 218) it is held that where one purchases land and at his request title is taken in the name of another, but the one paying the consideration retains the deed unknown to the grantee, yet by the deed title passes and becomes vested in the grantee, and there is no resulting trust, or any interest whatever, legal or equitable, in favor of the purchaser. That the person furnishing the purchase money had neither title nor legal or equitable interest is held in Niver v. Crane ( 98 N.Y. 40); Hoar v. Hoar (48 Hun, 314; affd., 125 N.Y. 735); Robertson v. Sayre (53 Hun, 490; affd., 134 N.Y. 97); London v. Epstein, No. 1 ( 138 App. Div. 513), and Fagan v. McDonnell, No. 1 (115 id. 89; affd., 191 N.Y. 515).

" In Everett v. Everett ( 48 N.Y. 218), relied upon by the plaintiffs, the action was ejectment. The controversy arose over the title to the Vail lot, so called. Walter Everett purchased the lot and by his request Vail made the deed to Collins Everett, infant son of Walter.

The title was not to remain in the children, but its route in being transferred was to pass through them to its destination, the husband and intended grantee. If the grantors had conveyed to the children, expecting them to retain the title for the benefit of the father, the Statute of Uses and Trusts (1 R.S. 728, §§ 51-53) would probably vest them with the absolute ownership. ( Everett v. Everett, 48 N.Y. 218; Niver v. Crane, 98 id. 40.) Under the arrangement that the title was taken in them to avoid running counter to the rule which forbade the conveyance directly to the husband ( Hendricks v. Isaacs, 117 N.Y. 411, 416, 417), if the children had refused to deed to their father, equity would have compelled them to convey.

There was never any repudiation of the deed by the trustee to Thompson by the latter, but he recognized its validity in that action and in other proceedings, so that delivery of the deed to Cottle and its recording were equivalent to a delivery to the grantee. ( Wilcox v. Drought, 71 App. Div. 402, 407; Everett v. Everett, 48 N.Y. 218.) The judgment is not conclusive because the issues were not identical with those involved in the present action.