tion, as legibly as usual, and without aid or inconvenience. This witness is quite positive, however, that on March 14th, when the conveyance to himself was executed, Stephens was fully competent, both mentally and physically, to do what he did, but became incompetent immediately thereafter. And finally, in consideration of this attempt to serve the plaintiff, as it appears to me, the bill as against him was dismissed at the hearing.

Several physicians were called by the plaintiff, and testified as experts upon the hypothesis stated to them, that a person in Stephens' condition was not capable of transacting important business. But the case given them by counsel for the plaintiff is as different from the real Stephens case as day is from night. The fact is, as the evidence plainly shows, he was, under the circumstances, as capable of transacting the business he did on March 20th-the execution of these deeds-as any one of the medical experts.

For it must be remembered that it is one thing to have executed these deeds as the final act of a long and well-considered purpose for the disposition of 19 acres of land, on which he had lived for a quarter of a century, and quite another to have considered and acted upon an important business proposition concerning a matter with which he was not familiar, and which was then for the first time presented to him.

The business of disposing of this property among his relatives and friends was thought out and arranged in the main in the mind of Stephens long before the deeds were executed, and all that remained to be done on March 20th was the simple act of signing the same, which, in my judgment, he was fully capable of doing up to the last moment of his life.

It is hardly necessary to say anything in support of the finding that the failure to include the plaintiff in the disposition of his property was not the result of any adverse impression made on Stephens by any of these defendants or any one else; for if there is any one fact established in this case beyond a peradventure, it is that for at least 16 years before his death he never wavered in his purpose to disinherit her. This intention was formed on that, to him memorable day, when, in answer to his entreaties on his bended knees, to come home and live decently, she drove him from her door with a scorn and contumely unworthy of her sex, let alone a daughter.

The facts concerning the execution and delivery of the deeds are stated in the finding. There is no conflict in the evidence on this point. Mr. Richard Williams, a distinguished member of this bar, who was present as Stephens' legal adviser, made a detailed memorandum on the next day of what transpired on the occasion, which was put in evidence as a part of his testimony. His statement is corroborated by that of every person who was present, including the notary, Mr. Stewart, a disinterested witness, who is the mayor of East Portland, and long engaged in respectable business here.

And now as to the conclusions of law; and, first, as to the delivery of the deeds.

Delivery is essential to the due execution of a deed. It takes effect only from delivery. The deed may be delivered to the party himself., It may be delivered to a stranger as an escrow, to be kept by him until certain conditions are performed, and then to be given to the grantee. Until the condition is performed the property does not pass, but remains, with the grantor; and it is ordinarily considered as the deed of the grantor from the time of the second delivery. A deed may also be delivered. to a third person as a deed, to be delivered to the grantee on the happening of some future event. In such case the writing is a valid deed from the beginning, and the third person is a trustee for the grantee, Shep. Touch. 55; 4 Kent, Comm. 454; Souverbye v. Arden, 1 Johns. Ch. 240; Wheelwright v. Wheelwright, 2 Mass. 447; Hatch v. Hatch, 9 Mass 307; Blight v. Schenck, 10 Pa. St. 285; Steele v. Lowry, 4 Ohio, 72; Shirley v. Ayres, 14 Ohio, 307 (45 Amer. Dec. 546;) Hoffman v. Mackall, 5 Ohio St. 124; Church v. Gilman, 15 Wend. 656; Foster v. Mansfield, 3 Metc. (Mass.) 412; O'Kelly v. O'Kelly, 8 Metc. (Mass.) 439; 3 Washb. Real Prop. (5th Ed.) 306; 5 Amer. & Eng. Enc. Law, 448..

Of course the delivery of the deed to the third person for the grantee must, as contended by counsel for the plaintiff, be absolute. No future control of the instrument must be reserved to the grantor. As was said in Church v. Gilman, supra, whether the grantor divests himself of his estate by the transaction depends on the delivery of the deed.. "If the delivery is absolutely as his, the grantor's deed to the stranger for the use of the grantee, the delivery is good; but if it be delivered to the stranger, subject to the future control of the grantor, no estate passes."

Now, these deeds were delivered to the notary for the benefit of the grantees, four of whom were absent, to be handed them on the death of the grantor.

He said without qualification that he wanted the grantees to have the deeds, the benefit of them,—and to make sure of it he asked his coun; sel how it could be done. He answered correctly: "You can deliver them to Stewart for the parties,"--when the grantor replied: "Stewart, you take the deeds that way for the parties named in them. I would rather not have them recorded until I am dead." The notary took the deeds "in that way" for the grantees, as their agent, and gave them to the parties as directed. From that moment the power of the grantor over the deeds was gone. He was well assured that he would soon pass away. He had, after due deliberation, just succeeded, in the exercise of his undoubted right, in disposing of the remainder of his property to his own satisfaction. He made no reserve, and had none to make, except the harmless wish that the transaction should not be blazoned to the public by the deeds being put on record before his death. If ever there was an absolute delivery of a deed to a third person for the use of the grantee therein this was one. Indeed, the delivery was good as an escrow, as well as the personal deed of the grantor, and took effect as his deed on his death. 5 Amer. & Eng. Enc. Law, 451.

Second. The legitimacy of the children of India Sexton.

India Alderman, née Stephens, was formally married-married in form-to Edward S. Sexton, and thereafter they two "lived and cohabited as husband and wife" for many years, and until Sexton died. By this act of 1889 it is declared that the children of this marriage "shall not be regarded as illegitimate within the meaning" of the same. What significance ought to be given to the phrase "within the meaning of this act" it is not necessary now to consider. Without it the children are apparently made legitimate to all intents and purposes, and might inherit from the father as well as the mother, and through both of them. It is sufficient for the purposes of this case to hold that children so born, though not in lawful wedlock, are by the act made legitimate, at least as to the mother; and therefore they and their descendants may inherit through her as her representatives. It follows that the children and grandchildren of India are lawful heirs, as her representatives, of James B. Stephens.

But it is contended by counsel for the plaintiff that this act is unconstitutional and void because the "subject" of it is not expressed in the title, as required by section 20 of article 4 of the constitution of the state; and the Case of The Borrowdale, 39 Fed. Rep. 376, decided by me in the United States district court, is cited in that behalf. Without stopping to consider how far that case supports this contention, it is sufficient to say that in State v. Phenline, 16 Or. 107, 17 Pac. Rep. 572, the supreme court of the state has held that an act amendatory of a section of an act does not require a new title; that the title of the original act applies to the amended one and expresses the subject of it, "unless there has been a clear departure and complete change of substance from the original." The amendment in this case is contained in the proviso to the end of the section, and is clearly on the same subject as the original,-the descent and distribution of property in the case of children born out of lawful wedlock. It qualifies its operation in the case of such children whose parents were "formally" married and lived together as husband and wife. The court also said in State v. Phenline that, construing said section 20 with section 22 of the same article, regulating the amendment of statutes, "it is sufficient, in amending a section of an existing law, to designate such amendment as the "subject of the amendatory act."

This construction of the constitution of the state is binding on this court, and, tried by it, this act, in my judgment, is clearly valid.

The policy and justice of it no one will dispute, and its operation in this and like cases fully justifies its enactment.

Third. The effect of the conveyance by the plaintiff on April 9th to Williams and Boyce.

The conclusions already reached show that the plaintiff never had any interest in the property covered by these deeds, and that her bill must be dismissed on that account.

But if the fact were otherwise, and these deeds were void, by this conveyance she has divested herself of all interest in the property, and there fore cannot maintain this suit. When she commenced her suit she had

no interest in the subject-matter. Argument cannot make this matter any plainer than the language of her deed. It conveys "the undivided one-half" of the property, which is all she was entitled to, if her father had died without making any disposition of the same. The conveyance was evidently made on the supposition that she was the only heir, and succeeded her father as such. But on investigation it turns out that the children of India are legitimate for the purpose of claiming through her the interest in her father's property she would have been entitled to if she had survived him. This is one-half, leaving the other undivided half to the plaintiff, which she appears to have disposed of before the commencement of this suit.

An attempt was made, after the case was submitted, to cure this mistake by the introduction of a writing in which the parties to this deed undertake to limit the effect of the language used in it by declaring that the grantor only thereby intended to convey, and the grantees only expected to receive, an undivided one-half of the plaintiff's interest in the property, whatever that might be. But a deed cannot be limited in its operation, contrary to its plain language, in that way. The grantees in the deed of April 9th may reconvey to the plaintiff an undivided onehalf of what she attempted to convey to them; but it is impossible, for the purpose of maintaining this suit, to reinvest her with any supposed interest in this property on the day it was commenced.

Some question has been made in the progress of the argument in this case about the consideration or want of consideration for the conveyances of March 20th. In all of them except those of the school-district and the Raffetys, the grantees, in addition to services rendered to Stephens, are shown to be his relatives, except McAyeal, who was married to his granddaughter, and is now the husband of his grandniece. The Raffetys, besides being old friends and neighbors, had rendered him substantial aid in his financial trouble without consideration.

However, these deeds are good as voluntary conveyances against the plaintiff or others claiming under the grantor by matter subsequent as descent. They are estopped to deny or contradict the consideration mentioned in them for the purpose of destroying their effect or operation. 3 Washb. Real Prop. (5th Ed.) 400; 4 Kent, Comm. 510; Grout v. Townsend, 2 Hill, 554.

On the grounds stated, the bill must be dismissed, and it is so ordered.

JUNKER v. FOBES et al.1

(Circuit Court, S. D. Alabama. February 11, 1891.)

1. PLEADING-CHARACTER OF SUIT.

The character of a suit is determined by the contents of the declaration or complaint, and not by the form of action adopted by the pleader.

2. SAME-EX CONTRACTU OR EX DELICTO.

If the cause of action as stated in the declaration or complaint arises from a breach of promise, the action is ex contractu; if from a breach of duty growing out of the contract, it is ex delicto and case.

3. SAME.

A declaration or complaint by a government contractor against his subcontractor for dredging, alleging damages to plaintiff's channel revetment, caused by defendant's not dumping the excavated material against this revetment, as agreed, is a suit for breach of contract, and not on the case.

TOULMIN, J. The substance of the complaint in this case is that the plaintiff, having a contract with the United States government to do certain dredging and to build a revetment for the improvement of a certain river and pass in the state of Louisiana, entered into an agreement with the defendants that they should dredge the "cut" at the junction of the said river and pass as the government might designate or direct, and that the defendants would commence as soon as possible after date of the agreement, and were to be paid per cubic yard of the material taken out and dumped as the engineer in charge might direct, the plaintiff agreeing to build the revetment and to keep ahead of the dredge, so as not unnecessarily to detain the dredge-boats. And the complaint avers that the plaintiff built the revetment provided for in his contract, and expended a large sum of money in the construction of it, relying on the defendants to dredge said "cut," and to dump or deposit against the revetment the material taken from said "cut," as the engineer should direct; it being provided in the contract between the plaintiff and the United States (as defendants well knew) that the material excavated from said cut should be thrown or dumped outside of and against said revetment, to protect it against storms or injury and destruction by reason of the water beating against it, all of which the defendants failed to do, and the plaintiff claims a large sum of money as damages suffered by him because of defendants' conduct in failing to perform their said contract to dredge said "cut," and dump or deposit the material taken therefrom against said revetment. The complaint avers that, although defendants undertook to provide good and sufficient appliances and skill for the execution of the contract, and to commence work with all possible dispatch, yet they delayed for some time to commence work, and then failed to perform their said contract. And the complaint further avers

1 Reported by Peter J. Hamilton, Esq., of the Mobile bar.