homa case, 172 Pac. Rep., 958, 4 A. L. R., 21. In this case it is said that while the authorities are not harmonious the great weight of authority is that the recording of a deed does not of itself operate as a delivery:

"The registry of a deed by the grantor might, perhaps, in the absence of opposing evidence, justify a presumption of delivery, but such presumption is repelled where the registry was made without the knowledge or assent of the grantee, and the property it purported to convey always remained in the possession and under the control of the grantor. Younge v. Guilbeau, 3 Wall. 636, 18 L. Ed. 262.

"The recording of a deed by a grantor does not of itself constitute a delivery. It depends upon the grantor's intention."

Many of the decisions of the highest courts of the land are cited as sustaining this text. For in

stance:

"Delivery of a deed is not effected by signing, acknowledging, and recording it, without the knowledge or assent of the grantee, if he is an adult, unless it is shown that the grantor intended thereby to give effect and operation to, and to relinquish all control over, such deed, and that the grantee, on being informed, assented." Weber v. Christen, 2 Am. St. Rep., 68 (121 Ill., 91). McGuire v. Clark, 85 Neb., 102, 23 L. R. A., N. S., 873, and note.

"The mere recording of an acknowledged deed, without an intention to deliver it, however, does not operate as a delivery or as a transfer of title to the grantee; and while it seems that the fact that the grantor may have been prompted by a desire to put the property beyond the reach of his creditors

is not necessarily fatal to a delivery by recording, there is clearly no delivery where the recording is with the intention to divest the grantor of apparent title only, and he keeps possession of both the deed and the property, especially where the grantee, at the time, has no knowledge of the conveyance, and this notwithstanding a subsequent expression of assent and satisfaction by the grantee.' 8 Ruling Case Law, 1007.

These authorities show the general current of opinion, and those of Ohio are in harmony with them. The superior court of Cincinnati in discussing this question, in Harvey v. Jones & Eaton, 1 Disney, 65, said at page 71:

"The recording of the deed adds nothing to its validity; 2 Ohio, 55, Johnston v. Haines. And the custody of the deed, after the record, by the grantor, when the existence of the deed itself is unknown to the grantee, is held as almost conclusive evidence that there was no intention to deliver it; 13 Pick. 69, Powers v. Russell; 1 Denio, 323, Elsey v. Metcalf; 5 Shepley, 391, Hatch v. Haskins. And as there can be no delivery, unless the grantee assents to it, and intimates his acceptance, no acceptance in such case can be presumed."

In Lessee of Mitchell v. Ryan, 3 Ohio St., 377, the supreme court had under consideration the delivery for record by a grantor of a deed whereof the grantee was a minor. In all such cases it is to be borne in mind that the law always presumes an acceptance of delivery by a minor or trustee where the grant is a beneficial one. (See note to Munro Following this rule

v. Bowles, 54 L. R. A., 897.) the court in the Mitchell case sustained the delivery

to the recorder as a sufficient delivery to the infant grantee, saying:

"Now it does seem to us that when a man executes and acknowledges a deed and delivers it to the recorder, with unqualified instructions to record it, as was done in the present case, the reasonable presumption, in the absence of any rebutting circumstances, is that he means thereby to transfer his title. And this presumption is powerfully strengthened when, as in the case before us, the grantee is a minor child of the grantor," etc.

The Mitchell case, therefore, is distinguished from the instant case in the important facts that the grantor in that case gave unqualified instructions for the deed to be recorded, and that the grantee in that case was a minor. The case is important herein because it holds that even in such a case, then under consideration by the supreme court, the delivery for record with unqualified instructions to record it only raises a presumption capable of being rebutted, and the court found it to be of significance that in that case the grantor failed to take the stand and deny that delivery was intended. If we indulge the presumption that delivery resulted from the record, and the further presumption that the same was accepted, we only have a presumption that may or may not be repelled by the testimony of the plaintiff and by attending circumstances. Let us consider these circumstances. The plaintiff was a woman who had.no business knowledge. She had never caused a deed to be transferred or recorded. At the same time that she directed the transfer and record of this deed she directed that her will be probated, which

was, of course, an absurd direction. While the terms transfer, record and probate meant nothing to her, she did employ terms which were significant because she understood them. She had theretofore had this deed and will in other hands for safekeeping. She knew what that meant, and when she told Mr. Wilgus to take this deed to Ironton for safe-keeping she expressed the only intelligent purpose that we know her to have had. This is consistent with her desire for secrecy. But that desire is wholly inconsistent with an intelligent desire that the deed be recorded. That desire was manifested in her conversation with the defendant to the effect that "she had it fixed up in my name and had it put away for safe-keeping in Ironton, so if she died while I was over there it would be there for me when I came back." To these circumstances we have her positive testimony that she had no intention of delivering the deed to the defendant. We find, therefore, that any presumption arising from the record of this deed is rebutted, that the defendant has no equity in the property, and that the plaintiff is entitled to the relief for which she prays.

The plaintiff brought this case without making a demand that the property be reconveyed to her. The litigation has resulted, in part at least, from her own ignorance. She should not recover her costs. Each party will be taxed with the costs made by such party.

Judgment for plaintiff.

SAYRE and MIDDLETON, JJ., concur.

Bakos v. Takach.

[14 Ohio

BAKOS ET AL. V. TAKACH ET AL.

Injunction - Church property dedicated to specific denomination Change of denomination by majority of members.

Property having been dedicated by way of trust for the use and promotion of a certain specific religious organization a court of equity will enjoin the majority of the members of such religious organization from changing the organization so as to effect an avowed change of denominational relations, which would amount to a turning over of the property to another separate distinct denomination and thus work an abandonment of the original purpose of the society.

(Decided July 5, 1921.)

APPEAL: Court of Appeals for Cuyahoga county.

Mr. Wilfred J. Mahon, for plaintiffs.

Messrs. Rocker & Schwartz, for defendants.

WASHBURN, P. J. This is a contest arising among members of the St. John's Greek Catholic Congregation, plaintiffs, claiming that the property of the Congregation was acquired to be used for a particular form of worship to which it was dedicated and used for many years, being held by the Congregation in trust for such use, and that the defendants, in violation of such trust, are diverting such Church and property from the uses and purposes for which it was dedicated and used.

There are involved two well-defined and distinct forms of worship, or church organization, one the Greek Catholic Uniat Church, and the other the Russian Orthodox Church.