Poplin v. Brown. it as a conveyance or destroying its operative effect, the recited consideration of a deed may be shown to be different in amount than that recited and also different in kind or character, that is, that the consideration was other property or land, and it may be shown that same has not been paid. [Edwards v. Latimer, supra.] "Where the consideration is a mere recital of an existing fact, it may be shown to be other than that recited. If the consideration is recited to have been paid, it may be shown that it was not. If it be recited to be one sum, it may be shown to be a different sum. And if it be recited to be money, it may be shown to be some article of property." [Davis v. Gann, 63 Mo. App. 425, 428.] It may be conceded also that a bill of sale has a like force in this respect as a deed, is a symbolic delivery of the property and vests title in the grantee. Speaking of the effect of a bill of sale of lumber the court in Collins v. Wayne Lumber Co., 128 Mo. 451, 466, 31 S. W. 24, said: "As between the vendor and vendee, no question. of fraud being raised on the record, when this lumber was separately stacked, marked with Collins & Company's initials, and measured, and a formal unconditional bill of sale was executed and delivered to plaintiffs the title to the number passed, notwithstanding plaintiffs still owed a balance which was to be paid when they shipped the lumber out of Clearwater. No other delivery was necessary to complete the same.' The fundamental error of plaintiff's and of the trial court's position is that it assumes that there was a delivery of the bill of sale. To make the bill of sale valid as a conveyance delivery is essential just as it is with a deed. Delivery as an essential fact to the validity of a conveyance does not merely mean that the physical control or possession of the instrument is given over by the grantee or lost by the grantor. Delivery involves intent as well as physical control and there is no delivery such as makes the instrument a present conveyance unless the grantor so intended it. [Powell v. Banks, 146 Mo. 620, 632, 48 S. W. 664.] To make the writing pass Poplin v. Brown. the title the grantor must deliver it for that purpose and as a conveyance and not for some other purpose. In McNear v. Williamson, 166 Mo. 358, 367, 66 S. W. 160, the court said: "Delivery of a deed is the consummation of the act, the completion of the contract, and in order to its accomplishment there must be a meeting of the minds of the parties on the purpose. 'In order to ascertain whether there has been a delivery of a deed or not, the intention of the parties in the entire transaction must be considered in connection with what they said and did.' [Miller v. Lullman, 81 Mo. 1. c. 316.] The act must have been with the intent on the part of the grantor to divest himself of title, and it must have been accepted by the grantee with the intent to take the title as indicated in the deed. These two facts are essential to the complete delivery of the deed." And in Bunn v. Stuart, 183 Mo. 375, 384, 81 S. W. 1091, the court held that: "A deed may be deposited with the grantee or handed to him for any purpose other than as the deed of the grantor, or as an effective instrument between the parties, without becoming at all operative as a deed.” This is a quotation from a New York case and the same quotation is made part of the text of 1 Devlin on Real Estate, section 271, under the caption "Delivery for Inspection," where many cases are cited showing that the mere fact that the manuel possession of a deed or other conveyance is given by the grantor to the grantee is not conclusive that such conveyance has been "delivered" in the legal sense and that parol evidence is admissible to show that the conveyance, though, absolute on its face, was not delivered with the intention to pass the title but for some other purpose. 1 Devlin on Real Estate, section 295, states the law thus: "It may be shown by parol evidence that a deed in the possession of the grantee was not delivered. The principle that parol evidence is not admissible to contradict a deed has no application to a case of this kind. There is a distinction to be drawn between a case where evidence is offered for the purpose of show-, Poplin v. Brown. ing that a deed was not to be delivered until the performance of some condition precedent, and a case where it was actually delivered with an agreement that the condition was to be performed.” In Shute v. Shute, 64 S. E. 145, the Court said: "The primary issue involved here is this: Did the plaintiff intend the deed in controversy to be delivered upon its signing, so as to convey the fee out of him and into the defendants? At the outset the defendants object to, as incompetent, any parol testimony to prove the negative of that issue. The rule of evidence which rejects parol testimony which tends to vary a written instrument is as old as the law. The matter of difficulty lies always in the application of the rule. The testimony here does not tend to vary the words of the instrument. The act and fact of delivery is independent of the language of the instrument. Delivery consists of an act of the hand joined with a purpose of the mind. It comes after the scrivener has done his work, and after the signing of the paper. Nor is the admission of parol evidence to show that although the manuel possession of the conveyance has been given over to the grantee, yet there was no legal delivery so as to pass title, precluded by the general rule that the delivery to the grantee cannot operate as an escrow. "It is true, doubtless," says Devlin on Real Estate, section 314 A, "that many cases may be found in which manuel custody of the deed has been entrusted to the grantee temporarily and in which parol evidence was admitted to show that no delivery was intended, but such cases do not affect the rule stated," (that delivery to the grantee cannot operate as an escrow). In Gaylord v. Gaylord (N. C.), 63 S. E. 1028, the court admitted parol evidence to show that a deed, the possession of which was given over by the grantor to the grantee, was not delivered with the intention to pass the title but with the understanding that same would be returned to the grantor Poplin v. Brown. if called for. The court held that the question of delivery depends largely upon the intention of the parties at the time and is not conclusively established by the physical passing of the conveyance from the grantor to the grantee; that to constitute a delivery the manuel change of possession must be with he intention to pass the title and that the instrument be effective as a conveyance; that this doctrine is not af fected by the rule that a deed cannot be delivered to the grantee by way of an escrow. In I Devlin on Real Estate, section 262, speaking of what constitutes a delivery, it is stated: "But there must be something more than a physical change of possession. The intent to deliver must also exist. The two acts essential to delivery are first, the act must have been performed by the grantor with the intent to part with the title and secondly, the grantee must have accepted the delivery with intent to take the title:" And again a section 263: "While no particular form or ceremony is required, still the mere delivery of its possession will not suffice, as there must also be the intent that the deed shall operate as a conveyance passing title;" and section 263B: "As the question of delivery depends largely upon the intent of the parties, the manuel passing of the deed does not conclusively establish it;" and section 264: The instrument has no legal existence as a deed and no person can acquire rights under it where it has passed into the grantee's hands without the grantor's intention to make it operative." In Black v. Sharkey (Cal.), 37 Pac. 939, the court held that though there is no allegation of fraud, accident, or mistake in the answer, parol evidence is admissible to show that the deed on which plaintiff relies, and which names him as grantee, was not in reality delivered, though it was handed to him by the grantor. If quoted from Washburn Real Property, p. 311, thus: "And even if the deed is deposited with the grantee, but for a purpose other than delivery, it would not take effect as a deed; nor can a title be derived from a deed which has not been delivered. While, therefore, it is not competent Poplin v. Brown. to control a deed by parol evidence where it has taken effect by delivery, it is always competent by such evidence to show that the deed, though in the grantee's hands, has never been delivered." In Elliott v. Murray (Ill.), 80 N. E. 77, the court stated: "While a deed cannot be delivered to the grantee in escrow, numerous cases have been decided by this court where deeds have been held not to have been delivered so as to pass title, although the possession of the deed passed from the grantor to the grantee." [See, also, Rountree v. Smith (Ill.), 38 N. E. 680; Haviland v. Haviland (Ia.), 105 N. W. 354; Lee v. Richmond (Ia.), 57 N. W. 613; Wilson v. Wilson (Ill.), 49 Am. St. Rep. 176; Melvin v. Melvin (Cal.), 97 Pac. 696; Joslin v. Goddard (Mass.), 72 N. E. 948.] From the nature and necessity of the case parol evidence is admissible to show that a deed or other conveyance, though put in the grantee's possession, was never delivered as such, and that its consummation as a conveyance, i. e., its delivery, was to take effect or be conditioned on some future event. This is not avoiding the conveyance or defeating its operative words but merely proving that what purports to be a conveyance is not really such for want of the essential element of delivery. The purported conveyance can have neither terms nor conditions to be varied or contradicted by parol where it has no validity for want of delivery as a conveyance. "Facts going to show that a writing never acquired original vitality as a contract are not considered as infringing the rule of evidence excluding verbal contradiction of writings." [Barrett v. Davis, 104 Mo. 549, 559, 16 S. W. 377; Broadwater v. Darne, 10 Mo. 277.] The plaintiff on the reargument of this case contended that the principles above stated are available only in suits in equity and point out that the case of Bunn v. Stewart, 183 Mo. 375, 81 S. W. 1091, and other cases are suits in equity to set aside certain deeds as being invalid for want of delivery. The argument is that, in order to admit parol evidence, that a conveyance |