all the exigencies of the intended route, and with a competent and skillful master, of sound judgment and discretion, and with sufficient knowledge of the route and experience in navigation to be able to perform in a proper manner all the ordinary duties required of him as master of the vessel. Owners of vessels employed as such carriers must see to it that the master is qualified for his situation, as they are responsible for his want of skill and knowledge in that behalf, and for his negligence and bad seamanship. In the absence of any special agreement to the contrary or exception in the bill of lading or contract of shipment, his duty extends to all that relates to the loading as well as the safe keeping, due transportation and right delivery of the goods, and for the faithful performance of all those duties the ship is liable as well as the master and owners. Abb. Ship., 344; Laveroni v. Drury, 8 Exch., 166; Clark v. Barnwell, 12 How., 272; The Niagara v. Cordes, 21 How., 27, 16 L. ed. 47; King v. Shepherd, 3 Story, 349; 3 Kent, Com., 213; 1 Sm. L. Cas., 7th ed., 387; 1 Sm. Marc. L., 386. 5. Differences of opinion may arise as to the merits of the fourth assignment of errors and, inasmuch as enough is alleged in those which precede and follow it to show that the decree of the circuit court must be reversed, the court here does not find it necessary to determine the question whether the speed of the steamer, in view of the conflicting testimony upon the subject, was or was not greater than the exigencies of the impending peril would justify. dence satisfies the court would necessarily be encountered in such an attempt. Neither the state of the water nor the wind was such as to furnish any just excuse for the master or pilot, as they might have chosen the other passage or have taken proper and seasonable measures to leave back one of the barges for the next trip. Ship-owners are responsible for such a disaster if it results from the ignorance, unskillfulness or negligence of the master or those in charge of the vessel. Where the master, being ignorant of the coast, sailed past the port to which he was destined and ran into another port in the possession of the enemy and was captured, the Court of King's Bench unanimously decided that the implied warranty to provide a master of competent skill was broken by sending out one who was unable to distinguish between the two ports. Tait v. Levi, 14 East, 482. *Ignorance and unskillfulness being [*17 proved, the attempt to set up inevitable accident is vain, as such a defense can never be sustained even in a collision case, unless it appears that neither party is in fault. Loss or damage occasioned by such a disaster, where it appears that those in charge of the deck were incompetent to perform the required duty, either from inexperience or want of knowledge of the route, or from negligence or inattention, cannot be regarded as being the result of natural causes, nor as falling within the exception contained in the bill of lading or contract of shipment. 16 L. ed. 701. Service was not made in this case upon the barge, and of course the decree must be founded upon the fault of the steamer and those who were responsible for the unskillfulness and bad judgment exercised in her navigation. 6. Nor is it necessary to express any decided Different definitions are given, of what is opinion whether the fifth assignment of error called inevitable accident, on account of the is or is not supported by the evidence exhibited different circumstances attending the disaster, in the case, but it is deemed proper to say that but there is no decided case which will support there is much reason to conclude that it was such a defense where it appears that the disthe course of the current that forced the craft aster was occasioned by the incompetency, unto the leeward, and not the gust of wind, as skillfulness or negligence of the master or pilot was supposed by those in charge of the deck in charge of the deck. The Morning Light, 2 of the steamer at the time the barge was sunk. Wall., 560, 17 L. ed. 864; Union Steamship Co. Enough appears to show that the bridge. N. Y. & Va. Steamship Co., 24 How., 313, there does not span the river directly across 16*] the current, and that the *tendency of the current is to force the vessel passing down the river to the leeward, and the evidence is full to the point that neither the master nor the pilot had any knowledge that they would have to encounter any such difficulty in at tempting to effect the passage between those piers. Support to that proposition is found in the fact that they did not think it necessary adopt any precaution to prevent such a dis aster, except to see that the craft headed midway between the piers of the narrow passage and to give the steamer a full head of steam. so as to make the passage as quick as possible. which shows beyond all doubt that little or no use could be made of the helm during the passage, except to steady the craft on the course adopted just before they entered the passage between the piers where the disaster occurred. to Reliable means to ascertain with certainty what force it was which caused the craft to make leeway during the passage is not exhib ited in the record, nor it is necessary to decide that point, as it was plainly a rash act to undertake to steer the craft through that passage or a windy day when the banks of the river were full, in the face of the dangers which the evi 504 Decree reversed with costs and the cause re manded, with directions to enter a decree for JOSEPH H. ADAMS, JR., and John A. v. ADDIE D. ADAMS. (See S. C., 21 Wall., 185-196.) Execution of deed-disclaimer by trustee-effect of delivery of deed. 1. Where defendant in his answer admits that he signed and sealed a deed to a trustee in trust for his wife, that he acknowledged it and put it on record, but denies that he delivered it, he simply denies the law. 2. The refusal of the trustee to accept the deed sometime after, or to act as trustee, is not a controlling circumstance. Although he may never have heard of the deed, the title vests in him, subject to a disclaimer on his part. Such disclaimer will not, however, defeat the conveyance as a transfer of the equitable interest to a third person. by the refusal of all the trustees to accept the trust. The court of chancery will appoint new trustees. 4. Where, in addition to the facts already stated, defendant kept the deed in his possession, and declared openly and repeatedly to his wife and to her brothers and sisters, that it was a complete provision for her and that she was perfectly protected by it, as matter of law, the deed was sufficiently delivered, and it is the duty of the court to establish 3. A trust cannot fail for want of a trustee, nor the trust. [No. 75.] Argued Nov. 20, 23, 24, 1874. Decided Dec. 7, 1874. A son v. Ellison, 6 Ves., 656; Antrobus v. Smith, 12 Ves., 39; Edwards v. Jones, 1 Myl. & C., 226. The cases of Sloane v. Cadogan, Sugd. Vend., 816; Fortesque v. Barnett, 3 Myl. & K., 36; Kekewich v. Manning, 1 De G., McN. & G., 176, which are cited in Hill on Trustees, as overruling Edward v. Jones, 1 Myl. C., 226, only overrule it so far as this; they decide that all in his power to assign that interest, such a where the owner of an equitable interest does transfer will be enforced by equity without regard to the legal title, and even, perhaps, without notice to the holder of the legal estate. But they exclude the doctrine that equity will interfere where there is no valuable consideration, to complete what the grantor has purposely left incomplete. The grantor must do all in his power to carry out his intention that the nature of his estate PPEAL from the Supreme Court of the will admit. The bill in this case was filed in the court below by the appellee to enforce an alleged trust in certain real property. On August 13, 1861, she joined with the defendant Adams, then her husband, in a deed to Appleton, in trust for the sole and separate use of Adaline Adams, wife of Joseph H. Adams, Jr., for and during her natural life, with power on her part to appoint the inheritance through the said trustee, and in default of the exercise of such power, with remainder over in fee to the children of Mr. and Mrs. Adams, living at her death, or if none, then in trust to Mr. Adams himself in fee. The deed was duly executed and was recorded by Mr. Adams, and kept by him for some years where Mrs. Adams had access to it. Appleton, the trustee named in the deed, never received it or knew of its existence until nine years after, when he refused to accept the trust. A In 1870 Mrs. Adams obtained a divorce. Mr. Adams thereafter continued in the possession of the premises and denied her title. decree having been entered in favor of the complainant, the respondents took an appeal to this court. The case is further stated by the court. Messrs. T. J. D. Fuller, A. G. Riddle and Edward Lander, for appellants: No legal estate passed to Appleton. 1. Because there was no delivery of the deed. Shep. Touch., § 7; Moore, 300; Wheel wright v. Wheelwright, 2 Mass., 447, and cases there cited; Fay v. Richardson, 7 Pick, 91; Fairbanks v. Metcalf, 8 Mass., 239; Carr v. Hoxie, 5 Mas., 60; Barns v. Hatch, 3 N. H. 304. Registry is not delivery. Maynard v. Maynard, 10 Mass., 458, a very strong case; Harrison v. Trustees of Phillips Acad., 12 Mass., 461; Powers v. Russell, 13 Pick., 75. 2. Because there was no acceptance by the grantee. The title does not pass unless there is an acceptance. Jackson v. Phipps, 12 Johns., 418; Carr v. Hoxie, supra; Harrison v. Trustees of Phillips Acad. supra. A court of equity will not enforce a voluntary gift or conveyance, made without consideration, as against the grantor in his lifetime, at the instance of the donee or grantee. Bunn v. Winthrop, 1 Johns. Ch., 329; EIL Milroy v. Lord, 8 Jur. (N. S.) 806; Antrobus v. Smith, supra; a strong case in point is Holloway v. Headdington, 8 Sim., 324; Meek v. Kettlewell, 1 Hare, 474, 475; (S. C.), 1 Phill., 342; Beech v. Keep, 23 Law Jour. Ch., 539. Messrs. Wm. W. Boyce and John Selden, for appellee: There was such delivery of the instrument as rendered the conveyance complete. 1. It was thought in 1832 that, as between grantor and grantee, "proof of sealing and delivery would alone be required, and the acknowledgment of the fact by the party would be sufficient proof of it. Lessee of Sicard v. Davis, 6 Pet., 136. 2. "A deed lodged with the clerk of the court or register for the use of the grantee, is clearly a good delivery, if the grantee afterwards assent." 2 Rob. Pl., 10; Cloud v. Calhoun, 10 Rich. Eq., 362; see, Parmelee v. Simpson, 5 Wall., 81, 18 L. ed. 542. Whether the law requires registration or not. 1 Saund. Pl. and Ev., 443, Am. ed., 1837; Stewart v. Redditt, 3 Md., 79. Registration is prima facie evidence of delivery. The Lady Superior v. McNamara, 3 Barb. 3. No particular form of delivery is required. 4 Com. Dig., tit. Fait, A, 3; 2 Tho. Co. Litt. 235. Acts evincing an intention to deliver are sufficient. Goodrich v. Walker, 1 Johns. Cas., 250; 2 Phil. Ev., 551, Am. ed. 1868; Shelton's case, Cro. Eliz., 7; Chamberlaine v. Starruter's case, 1 Leon., 140. is 4. The presumption of an intention to deliver confirmed by declarations of the grantor subsequent to the conveyance. Tipton v. Ross, 10 Ohio, 273. The receipt of the rents and profits by the husband and his retention of the deed were consistent with the title of the appellee, in view of the relations existing between the parties. The first occurred in Souverbye v. Arden, 1 Johns. Ch., 240, and the second, even when occurring beyond the marital connection, never invalidates the deed nor invokes the trust. formal title remained in Stone. The bill further alleges: "That on the 13th of August, 1861, a certain indenture was made and entered into by and between the said defendant Adams and the plaintiff, his then wife, of the first part, and said William J. Stone, as trustee aforesaid, of the second part, and the said defendant Appleton, the party of the third part, whereby the Clavering v. Clavering, 2 Vern., 473, (S. C.) said lot of ground, with the buildings thereon, in Ho. Ld., 7 Bro. P. C. 410; Barlow v. Hene- and the privileges and appurtenances thereto age, Prec. in Ch. 211; Naldred v. Gilham, 1 P. belonging, was conveyed to the said defendant Wms., 577; Sear v. Ashwell, 3 Swanst., 411 Appleton in fee, but in trust, nevertheless, for (note); Worrall v. Jacob, 3 Mer., 256, 271; the sole and separate use of the plaintiff during Exton v. Scott, 6 Sim., 31; (9 Const. Eng. Ch., the term of her natural life, and to suffer and 155); Jones v. Jones, 6 Conn., 111; Souver- permit her during such term to use, possess and bye v. Arden, 1 Johns. Ch., 240; Bunn v. Winth- enjoy the said premises, and to rent out the rop, 1 Johns. Ch., 329; Grugeon v. Gerrard, 4 same from time to time and to receive the You. & Col., 131; Dillon v. Coppin, 4 My. & Cr., rents and profits thereof to her own use, in the 660; Paul v. Palmer, 13 Law J., 67; MacNagh-same manner as she might or could have done ton's Sel. Cas. Eq., secs. 207, 211, pp. 177, 180: as a feme sole, with full power to the said de2 Rob. Pr., 10; see, Hall v. Hall, L. R., 8 Ch. fendant Appleton as trustee aforesaid, at and App., 430. upon the request of the plaintiff, to sell and convey said premises in fee simple and pay over the proceeds of such sale to the plaintiff, or to such person as she might direct or appoint, all of which will more fully appear by reference to a copy of said indenture (the original whereof is duly recorded in liber J. A. S. No. 213, at folio 352 et seq., the same being one of the land records for the county and district aforesaid) herewith filed, marked exhibit A, D, A, No. 1, and prayed to be taken as part of their bill; and that the said original indenture, after being duly signed, sealed, acknowledged and delivered by the parties thereto, was so recorded at the exclusive expense and express instance and request of the said defendant Adams, who afterwards, as the friend of the plaintiff and the agent of the said defendant Appleton, obtained possession of the said original indenture, which is still in his custody or under his control." A trust never fails for want of a trustee. "He may refuse to execute the trust, but in that case a court of chancery will execute it for him; and the assent of the cestui que trust may be given at any time after the deed is made, and will always be presumed in the ab sence of proof to the contrary." Field v. Arrowsmith, 3 Humph. (Tenn.), 442; McLean v. Nelson, 1 Jones (Law), 396; Dawson v. Dawson, 1 Rice, Eq., 258; 1 Crui. Dig., tit. 12, ch. 4, sec. 59, p. 539; Read v. Robinson, 6 Watts & S., 329; Furman v. Fisher, 4 Cold., 631; Braswell v. Downs, 11 Fla., 62; see.Saunders v. Harris, 1 Head. (Tenn.), 206. This rule applies to the trustee, even when it may be justly presumed that he never heard of the deed. Cloud v. Calhoun, 10 Rich. Eq. (S. C.), 358, Confiding in the validity of the settlement and the faith of her husband, the appellee first parted with her contingent dower interest in the property and afterwards, upon the advice of counsel, waived even her right to alimony in the Massachusetts court. Under such circumstances appellant, Adams, is estopped from denying the efficacy of a settlement. Story, Eq. Jur., § 385; Carr v. Wallace, 7 Watts, 400; Bank of U. 8. v. Lee, 13 Pet., 107; Swain v. Seamens, 9 Wall., 254, 19 L. ed 554. Mr. Justice Hunt delivered the opinion of the court: The first question in this case is, whether there was a delivery of the deed of August 13, 1861. If not a formal ceremonious delivery, was there a transaction which, between such parties and for such purposes as exist in the present case, the law deems to be sufficient to create a title? The plaintiff files her bill to establish the deed in question as a settlement made upon her by her husband, to compel its delivery to her, to remove the trustee named in it, and to have some suitable person appointed trustee in his place. She alleges that, prior to the date mentioned, the premises described in the deed referred to had been conveyed by her husband and herself to one William J. Stone, as security for the payment of certain moneys borrowed by her husband; that the debt had been paid, but the It is further alleged that the relation of the parties as husband and wife has been dissolved by the decree of a competent court of the State of Massachusetts, and that the plaintiff, relying upon the provisions of the deed referred to, neither sought nor obtained alimony in that suit. That she has accepted and still accepts the benefits of the trust; that Appleton declines to act as trustee, to allow the use of his name, or in any way to aid her in the matter; that her husband, the defendant, is in possession, receiving the rents and profits, and declines to ac knowledge her rights in the premises. In his answer the defendant, Adams, admits the making of the deed, but denies that it was ever delivered to Appleton or to any perHe further son in his behalf or to his use. says that he never, at any time, intended to deliver the deed so as to render it valid and effectual in law, but designedly retained the deed in his own possession, without any delivery whatever. In a later paragraph he avers that the deed was not delivered to his then wife, nor did he intend to make a settlement upon her, and he denies the existence of the trust alleged. These portions of the answer are responsive to the allegations in the plaintiff's bill that the deed, after being signed, sealed and delivered, was recorded at the request of defendant, Adams, and at his expense. The burden is thus imposed upon the plaintiff of, maintaining her allegation by the proof required, where a material allegation in the bill is denied by the an swer. It is evident, however, that the apparent issues of fact and seeming contradictions of statement become less marked by looking at what the parties may suppose to constitute a delivery. That the defendant signed and sealed the deed he admits. That with his wife, the present plaintiff, he acknowledged its execution before two justices of the peace, and that the deed thus acknowledged by him not only purported by words in præsenti to grant, bargain and convey the premises mentioned, but declared that the same was signed, sealed and delivered, and that this deed, with these declarations in it, he himself put upon the record, is not denied. If these facts constitute a delivery under circumstances like the present, then the defendant, when he denies that a delivery was made, denies tne law simply. Mrs. Adams, the plaintiff in the suit, was examined as a witness. She states that the defendant told her that he wanted to make over this house to her and her children, to be for their sole and entire use while she lived, and for the children after her death. She states that she had entire confidence in her husband, so much so that she never took the paper, but left it in his possession, thinking that her interests were perfectly safe in his hands; that she saw it frequently, and there was nothing to prevent her taking possession of it; that this deed was a frequent subject of conversation between her husband and herself, and that he always spoke of it as making the property over to her during her lifetime, and to her children after her death, and that the deed was always ams. understood between them to be good and valid. None of these statements are denied by Mr. AdHe was as competent to testify as was Mrs. Adams. If he could have contradicted his wife with truth, we cannot doubt that he would have done it. Testimony of the same character is given by other witnesses. Thomas C. De Leon testifies that the defendant told him emphatically that the house and lot was made over to the complainant as her property, as a provision for the support of herself and children against accidents. He specifies three different occasions on which these statements were made, giving the details of the conversations. Although time, place and circumstances are thus pointed out, the defendant makes no denial of these statements. Agnes De Leon gives testimony to the same purport, giving one conversation in detail, and no denial of her statements is made by the defendant. The deed corresponded substantially with the intention thus expressed. Should the property be sold by the order of Mrs. Adams, the money received would be subject to the same trusts as the land, to wit: for the use of Mrs. Adams during her lifetime and her children after her death. It would not, by such transmutation, become the absolute property of Mrs. Adams. Upon the evidence before us, we have no doubt that the deed of August 13, 1861, was executed, acknowledged and recorded by the defendant with the intent to make provision for his wife and children; that he took the deed into his own possession with the understanding | and upon the belief on his part that he had accomplished that purpose by acknowledging and procuring the record of the deed, by showing the same to his wife, informing her of its contents and placing the same in the house therein conveyed, in a place equally accessible to her and to himself. The defendant now seeks to repudiate what he then intended, and to overthrow what he then asserted and believed he had then accomplished. It may be conceded, as a general rule, that delivery is essential, both in law and in equity, to the validity of a gift, whether of real or personal estate. Antrobus v. Smith, 12 Ves., 39 and note. What constitutes a delivery is a subject of great difference of opinion, some cases holding that a parting with a deed, even for the purpose of recording, is in itself a delivery. Cloud v. Calhoun, 10 Rich. Eq., 362. It may be conceded also to have been held many times that courts of equity will not enforce a merely gratuitous gift or mere moral obligation. Cloud v. Calhoun, supra. These concessions do not, however, dispose of the present case. 1. We are of opinion that the refusal of Appleton, in 1870, to accept the deed, or to act as trustee, is not a controlling circumstance. *Although a trustee may never have [*192 heard of the deed, the title vests in him, subject to a disclaimer on his part. Cloud v. Calhoun, supra. Such disclaimer will not, however, defeat the conveyance as a transfer of the equitable interest to a third person. Lewin, Tr., 152; King v. Donnelly, 5 Paige, 46. A trust cannot fail for want of a trustee, or by the refusal of all the trustees to accept the The court of chancery will appoint new trust. trustees. Ib. The case turns rather upon the considerations next to be suggested. 2. By the transactions already detailed, and by the declarations of Mr. Adams, already given, was there created a trust which the parties benefited are entitled to have established by a court of chancery? Mr. Lewin, in his work on Trusts, thus gives the rules on this subject: "On a careful examination the rule appears to be, that whether there was transmutation of possession or not, the trust will be supported, provided it was in the first instance perfectly created." P. 55, 4th ed., 1861. "It is evident (he says) that a trust is not perfectly created when there is a mere intention or voluntary agreement to establish a trust, the settler himself contemplating some further act for the purpose of giving it completion." "If the settler propose to convert himself into a trustee, then the trust is perfectly created, and will be enforced so soon as the settler has executed an express declaration of trust, intended to be final and binding upon him, and in this case it is immaterial whether the nature of the property be legal or equitable." "Where the settler purposes to make a stranger the trustee, then, to ascertain whether a valid trust has been created or not, we must take the following distinctions: If the subject of the trust be a legal interest and one capable of legal transmutation, as land, or chattels, etc., the trust is not created unless the legal interest be actually vested in the trustee." 193*] *To these positions numerous authorities are cited by the learned author. In the case before us the settler contemplated no further act to give completion to the deed. It was not an intention simply to create a trust. He had done all that was needed. With his wife he signed and sealed the deed. With her he acknowledged it before the proper officers, and himself caused it to be recorded in the appropriate office. He retained it in his own possession, but where it was equally under her dominion. He declared openly and repeatedly to her, and to her brothers and sisters, that it was a completed provision for her, and that she was perfectly protected by it. He intended what he had done to be final and binding upon him. Using the name of his friend as trustee he made the placing the deed upon record and keeping the same under the control of his wife as well as himself, a delivery to the trustee for the account of all concerned (Cloud v. Calhoun, supra); or he intended to make himself a trustee by actions final and binding upon himself. Adopting the principles laid down by Mr. Lewin, the plaintiff has established her case. Mr. Hill, in his work on Trusts, lays down the rule in these words, in speaking of a voluntary disposition in trust: After "The fact that the deed remains in the possession of the party by whom it is executed, and that it is not acted upon, or is even subsequently destroyed, will not affect its validity, unless there are some other circumstances connected with the transaction which would render it inequitable to enforce its performance." To this he cites many authorities. quoting many other cases, the author adds: "It would seem to follow from the foregoing decisions that the court will in no case interfere to enforce the performance of a voluntary trust against its author if the legal interest in the property be not transferred or acquired as part of the transaction creating the trust. The doc194*] trine of the court, however, does not, in fact, appear to be so confined. If a formal declaration of trust be made by the legal owner of the property declaring himself in terms the trustee of that property for a volunteer, or directing that it shall be held in trust for the volunteer, the court will consider such a declaration as a trust actually created and will act upon it as such." Hill, Tr., 136. The author says again: "It will be seen that it is difficult to define with accuracy the law affecting this subject. The writer conceives that he is warranted in stating the following propositions to be the result of the several decisions: 1. Where the author of a trust is possessed of the legal interest in the property, a clear declaration of trust contained in or accompanying a deed or act which passes the legal estate will create a perfect executed trust, and will be established against its author and all subsequent volunteers claiming under him. A clear declaration or direction by a party that the property shall be held in trust for the objects of his bounty, though unaccompanied by a deed or other act devesting himself of the legal estate, is an executed trust, and will be enforced against the party himself, or representatives, or next of kin after his death." Upon the principles laid down by this author the plaintiff's case is made out. It will be necessary to refer to a few only of the American authorities. In Bunn v. Winthrop, 1 Johns. Ch., 329, which was the case of a voluntary trust created in certain real estate in the City of New York, Chancellor Kent says: "The instrument is good as a voluntary settlement, though retained by the grantor in his possession until his death. There was no act of his at the time, or subsequent to the execution of the deed which denoted an intention contrary to the face of the deed. The cases of Clavering v. Clavering, 2 Vern., 473, 7 Bro. P. C., 410, *of Boughton v. Boughton, 1 [*195 Atk., 625, and of Johnson v. Boyfield, 1 Ves., Jr., 314, I had occasion lately to consider in the case of Souverbye v. Arden, and they will be found to be authorities in favor of the validity and operation of deeds of settlement, though retained by the grantor under circumstances much less favorable to their effect than the one now under consideration." In Souverbye v. Arden, 1 Johns. Ch., 255, which was a bill against the father to enforce a voluntary settlement of real estate upon the daughter, made by the father and by the mother, then deceased, the same learned judge says: "If we recur to the adjudged cases and the acknowledged rules of law on this subject, they will be found in favor of the valid operation of this deed, whether the actual delivery was to the plaintiff or to her mother (the mother being one of the grantors). This is much stronger, and attended with more circumstances of a due delivery than Shelton's Case, Cro. Eliz., 7. In that case a deed was sealed in the presence of the grantee and others, and was read, but not delivered, nor did the grantee take it, but it was left behind in the same place, and yet in the opinion of all the justices it was a good grant; for the parties came together for that purpose, and performed all that was requisite for perfecting it except an actual delivery; being left behind, and not countermanded, it was held to be a delivery in law. In the ancient authorities, and at a time when the execution of deeds was subjected to great strictness and formality, it was admitted that if A executed a deed to B, and delivers it to C, though he does not say to the use of B, yet it is a good delivery to B, if he accepts of it, and it shall be intended that C took the deed for him as his servant. A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof that he never parted, nor intended to part, with the possession of the deed; and even if he retains it, the weight of authority is decidedly in favor of its validity, unless there be other circumstances beside the mere *fact of his retaining it, to show it was [*196 not intended to be absolute. This will appear from an examination of a few of the strongest cases on each side of the question." He then goes into an examination of the decided cases, which it is only necessary to refer to the case itself. (That the deed in question created a trust, executed and complete, which will be enforced by the courts, see also, Neves v. Scott, 9 How., 196, 13 How., 271.) The defense rests upon the alleged non-delivery by Mr. Adams of the deed of August 13, 1861, to Mrs. Adams, or for her benefit. We have referred at length to the authorities which |