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woman, and her husband dissents thereto, it is void as to her, at common law. If the grant be to husband and wife, and he assent, she cannot, after his death, avoid the deed by verbal waiver or disclaimer of the title, But it is unqualifiedly stated by Coke, that if an estate be conveyed to a wife, and the husband expressly assents to the same, she may, after his death, and so may her heirs, waive the same.3

38. And, generally, if a deed is delivered to one who is authorized by another to receive it for him, or to one without such previous authority, but authorized by the grantee to retain it for him, it is held to constitute an effectual delivery.4 Where the deed conveys an estate to one which is defeasible upon contingency, and the same is thereupon to go over to another, as a contingent limitation, or there is a contingent remainder limited after the expiration of a particular estate, a delivery of the deed to the first taker is a delivery as to all who may be to take under it. And a remainder man may take under a deed poll delivered to the tenant of the particular estate, though a stranger to the deed.

39. There is a class of cases which it is enough simply to refer to in this connection, where courts, in their eagerness to carry out the intent of the grantor, and presuming an intent on the part of the grantee, from the manifest advantage to result to him from the deed, · so far assume an acceptance to be made, as to hold that a good and sufficient delivery has taken place and become effectual, before any actual acceptance by the grantee. These are so nearly exceptions to the general rule as to deserve a separate consideration, and embrace that class of conveyances which debtors, in embarrassed circumstances, make for the benefit of creditors when delivering a deed of assignment, absolutely and unconditionally, to a third person, to be delivered to the creditor. Of this class is Merrills v. Swift, where

11 Wood, Conv. 240; Melvin v. Proprs. &c., 16 Pick. 167 ; Whelpdale's case, 5 Rep. 119; Butler & Baker's case, 3 Rep. 29; Foley r. Howard, 8 Clarke (Iowa), 36; Co. Lit. 3 a.

* Butler & Baker's case, 3 Rep. 26; 1 Wood, Conv. 240. 8 Co. Lit. 3 a.

• Turner v. Whidden, 22 Me. 121 ; Stewart v. Weed, 11 Ind. 94; Guard v. Bradley, 7 Ind. 600; Western R. R. v. Babcock, 6 Met. 346, case of a delivery to agent of the corporation. 6 Folk v. Varn, 9 Rich. Eq. 303.

* Phelps v. Phelps, 17 Md. 134.

the deed took precedence of an attachment, though not actually received and accepted by the creditor till after an attachment made. 40. While such is the effect of a delivery, where it is made

with an intent to pass a present title, there may be a con[*584] *ditional delivery where the deed, though delivered, will not

take effect until the happening of some condition annexed thereto. A deed thus delivered, is called an escrow.?

41. But a deed can never be an escrow, if delivered to the grantee himself, unless for the express purpose of being handed to another person, even though accompanied with an express condition, and not to take effect unless such condition is complied with. The title will, nevertheless, pass by such delivery. It has, accordingly, been held, that if one of two obligors in an instrument, deliver it to the obligee, it is an effectual delivery as to both. So if an obligor execute an instrument, and deliver it to his co-obligor, or retain it himself, as an escrow, to be delivered to the obligee, it will not have that character. The importance of this will be perceived when it is recollected, that after a deed has been delivered as an escrow, it is no longer revocable by the maker, but the same will take effect whenever the condition has happened or been complied with, upon which it is to be finally delivered. If the delivery is made to the party, no matter what may be the form of the words, the delivery is absolute, and the deed takes effect presently, as the deed of the grantor, discharged of the conditions upon which the delivery was made.5 But where a composition deed was executed on the part of a surety, and delivered to a creditor to be void, if the creditors did not sign it, the creditor taking it to get their signatures, it was held to be an escrow of no binding obligation, unless all the creditors signed it. And this will be true, though after its delivery in the manner above stated, the deed, by the agreement of the parties, be placed in a stranger's hands, to remain till they call for it. It must, after all, depend, in each case, upon whether the parties at the time meant it to be a delivery to take effect presently. As where a deed was handed to the grantee, to place it in a third person's hands to keep as an escrow, and it was so received and transmitted, no title vested in the grantee, till a second delivery.2

1 Merrills v. Swift, 18 Conn. 257; Wilt v. Franklin, 1 Bin. 502. 2 Termes de la Ley, “ Escrow.”.

3 Shep. Touch. 59; Whyddon's case, Cro. Eliz. 520; Fairbanks v. Metcalf, 8 Mass. 230, 238 ; Brown v. Reynolds, 5 Sneed, 639; Cin. Wil. & Z. R. R. v. Iliff, 13 Ohio, St. 249-254. But sce, as to conditional delivery of bonds, i Wood, Conv. 193; Hawksland v. Gatchel, Cro. Eliz. 835, which is denied in Thoroughgood's case, 9 Rep. 137 ; Lawton v. Sager, 11 Barb. 349; Com. Dig. Fait, A. 4; Williams v. Green, F. Moore, 642; Holford v. Parker, Hob. 246, and Williams' note; Foley v. Cowgill, 5 Blackf. 18; Gilbert v. N. A. Ins. Co. 23 Wend. 43.

4 Millett v. Parker, Met. (Ky.), 608, 616; Worrall v. Munn, 1 Seld. 229; Wight v. Shelby R. R. 16 B. Mon. 4. See M. & I. Plank Road Co. v. Stevens, 10 Ind. 1.

6 Worrall v. Munn, sup. 238. See Herdman v. Bratten, 2 Harring. 396; State v. Chrisman, 2 Ind. 126; M. & Ind. Plank Road Co. v. Stevens, 10 Ind. 1; Black v. Shreve, 13 N. J. 458; Cin. & Wil. &c. R. R. v. Iliff, 13 Ohio, St. 249.

42. But a deed is a presently operative deed, and not an escrow, though placed in a stranger's hands, with a direction to deliver it to the grantee, at some future day or upon a certain event, unless there be some condition connected with such delivery, the happening of which, by the terms of the authority in the receiver, must precede delivery to the grantee, and until then, the deed is to have no effect. Such, in effect, was the delivery in the cases above cited, of Hatch v. Hatch, Belden v. Carter, and Doe v. Knight, and the law upon

the subject is thus stated by Perkins : “If I deliver an obligation or other writing unto a man as my deed, to deliver unto him to whom it is made, when he shall come to York, it is my [*585] deed presently, and if he shall deliver it to him before he come to York, yet I shall not avoid it; and if I die before he come to York, and, afterwards, he cometh to York, and he delivereth the deed unto him, it is clearly good and my deed, and that it cannot be if it were not

my
deed before

my

death." But it does not take effect until the second delivery, unless the grantor in the mean time becomes incapable of delivering the deed, when it relates back to the first delivery."

43. Writers, accordingly, are careful to caution persons making deeds and wishing to deliver them as' escrows, to use a proper form of

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1 Johnson v. Baker, 4 B. & Ald. 440. See Black v. Shreve, 13 N. J. 462.

2 Shep. Touch. Prest. ed. 59 ; Den v. Partee, 2 Dev. & B. 530; Simonton's Estate, 4 Watts, 180; Murray v. Stair, 2 B. & C. 82 ; Jackson v. Sheldon, 22 Me. 569;. Gilbert v. N. A. Ins. Co. 23 Wend. 43.

8 Perkins, $ 143; Shep. Touch. Prest. ed. 58, 59. See Wheelwright v. Wheelwright, 2 Mass. 447. But see this doctrine doubted. State Bank v. Evans, 3 Green, 155, and see 4 Kent, Com. 455, note; but is fully sustained by Foster v. Mansfield, 3. Met. 412; O'Kelly v. O'Kelly, 8 Met. 436; Murray v. Stair, 2 B. & C. 82; Shaw v. Hayward, 7 Cush. 175.

4 Foster v. Mansfield, 3 Met. 412, 415. VOL. II.

52

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words expressive of their intent, such, for instance, as “I deliver this as an escrow to you to keep until such a day, and upon condition, &c. And then you shall deliver this escrow to him as my deed.” It probably would not be necessary to use any technical form of words in such a case, and would be sufficient if the party making the deed, when he placed it in a third party's hands, declared, in intelligible terms, that it was not to be deemed or delivered as his deed, until some future time and on the happening of some future event, thereby expressly negativing the intention to treat it as his present deed, or as being to take effect presently."

44. When a deed has been delivered as an escrow, it has no effect, as a deed, until the condition has been performed, and no

estate passes until the second delivery,3 though, when such [*586] *second delivery has been made, it relates back to the first,

for many purposes, and is considered as a consummation of an inchoate act then begun. But if, in the mean time, the estate should be levied upon by a creditor of the grantor, he would hold by virtue of such levy, in preference to the grantee in the deed. Nor does such second delivery carry a right to the intermediate rents accruing between the first and second delivery. If the deed is delivered before the previous condition is performed, it will not be the deed of the grantor, or have any effect as such. The effect to be given to the obtaining possession of a deed delivered as an escrow, before the condition is performed, was fully considered in a case where the grantee obtained such possession by fraud, before the condition had been performed, and then conveyed the estate to an innocent purchaser. The court say, “ Until the performance of the condition, it (the deed) must remain a mere scroll in writing, of no more efficacy than any other written scroll. But when, upon the performance of the condition, it is delivered to the grantee or his agent, it then becomes a deed to all intents and purposes, and the title passes from the date of the delivery. The delivery, to be valid, must be with the assent of the grantor. If the grantee obtain possession of the escrow, without performance of the condition, he obtains no title shereby, because there has been no delivery with the assent of the grantor, which assent is dependent upon compliance with the condition." “ The recording of an escrow does not make it a deed.” They held that the depositary of an escrow was as much the agent of the grantee as the grantor. “He is as much bound to deliver the deed, on performance of the condition, as he is to withhold it until performance.” The grantee in the case, after obtaining possession of the deed, had it recorded, and then conveyed the estate to an innocent purchaser. But the court, upon full consideration held, that the purchaser acquired nothing by his deed, because his grantor never acquired any title by gaining possession of the escrow. They liken it to a deed which the grantee had stolen, where no title is gained thereby, and distinguish it from one obtained by fraud from the

1 Shep. Touch. Prest. ed. 58, 59; 1 Wood, Conv. 196 ; Jackson v. Catlin, 2 Johns. 248, 259 ; Fairbanks v. Metcalf, 8 Mass. 230, 238 ; Jackson v. Sheldon, 22 Me. 569; White v. Bailey, 14 Conn. 271 ; a deed sent enclosed in a letter to a third person, to be delivered to grantee upon his paying a certain sum, was an escrow; Clark v. Gifford, 10 Wend. 310; Gilbert v. N. A. Ins. Co. 23 Wend. 43; State Bank v. Evans, 3 Green, 155; Millett v. Parker, 2 Met. (Ky.), 616.

2 Com. Dig. Fait, A. 4; Hinman v. Booth, 21 Wend. 267; Fairbanks v. Metcalf, 8 Mass. 230, 238; Perk. 138; Touch. 59; Black v. Shreve, 13 N. J. 458.

8 Shep. Touch. Prest. ed. 59; Green v. Putnam, 1 Barb. 500, 504; Frost v. Beekman, 1 Johns. Ch. 297; Evarts v. Anges, + Wis. 351.

i Wood, Conv. 197 ; Ruggles v. Lawson, 13 Johns. 285; Shep. Touch. 59, 73; Butler & Baker's case, 3 Rep. 35; Shirley v. Ayres, 14 Ohio, 307.

6 Jackson v. Rowland, 6 Wend. 666; Frost v. Beekman, 1 Johns. Ch. 297 ; Jackson v. Catlin, 2 Johns. 248.

6 Perkins, $ 10; 3 Prest. Abst. 65.

7 Perkins, Ø 138; but see id. Ø 144; Stiles v. Brown, 16 Vt. 563, 569; Jackson v. Sheldon, 22 Me. 569. See Hooper v. Ramsbottom, 6 Taunt. 12; State Bank v. Evans, 3 Green, 155; Rhodes v. Gardiner, 30 Me. 110, unless the grantee holding it convey the land to a bona fide purchaser, ignorant of the fact as to the delivery. Blight v. Schenck, 10 Penn. St. 285 ; Peter v. Wright, 6 Ind. 183 ; Souverbye v. Arden, 1 Johns. Ch. 240.

grantor himself, where a title does pass by the actual delivery by · the grantor. A grantor may deliver his deed to the agent of the

grantee, to be delivered to the grantee if certain conditions are performed; otherwise to return it to the grantor; and if the agent accept it on those terms, the delivery will not give effect to the deed unless the condition is performed.?

45. The instances given in the books, illustrating some of these propositions, seem to imply the necessity of a second formal delivery to the party who is to take by the deed, unless such a construction would defeat the intent of the parties. Thus it is said in the Butler

1 Everts v. Agnes, 4 Wis. 343; 8. C. 6 Wis. 453 ; Black v. Shreve, 13 N. J. 458.

2 Cincin., Wil. & Z. R. R. v. Iliff, 13 Ohio, St. 249-254; Southern L. Ins. &c. Co. v. Cole, 4 Fla. 359.

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