| N.Y. Sup. Ct. | Aug 15, 1828
By the Court,
On the 5th March, 1822, the plaintiff’s intestate, Isabel McKinney, executed to the defendant a release of her right of dower in certain real estate, of which she was in possession ; and the defendant executed four notes of fifty dollars each, payable on the first day of April, 1823, 4, 5 and 6. These notes, and the release of dower, were put in the hands of Booth Northrop, under this agreement: That if Mrs. McKinney should deliver up the possession of the premises which she possessed, by the first day of May, 1822, then the notes were to be delivered to her, and the release to the defendant; but if she did not give up the possession of the said premises to the defendant, then the notes were to be re-delivered to the defendant, and the release to Mrs. McKinney. On the 30th April, 1822, Mrs. McKinney died on the premises, and on the 1st May she was buried. Previous to the 1st May, the defendant had-sold the premises to one Barlow, who took possession on or about the first of May. Before the death of Mrs. McKinney, she had packed up her goods for the purpose of giving the pos
It is not stated in the case, but it is to be presumed, that the defendant was owner of all the title to the premises occupied by Mrs. McKinney, except her right of dower—her life estate. The widow by a release of dower did not profess to convey any thing more than a life estate. Had the contract been completed by a mutual delivery of the notes and the release, although Mrs. McKinney had died the next moment, the notes must have been paid ; and on the other hand,’ had the agreement rested entirely in parol, and no notes nor release had been signed, there could have been no question that the defendant could not be called on to pay. The whole difficulty, then, arises from the inchoate execution of the agreement bewteen the parties. The writings were delivered conditionally. The delivery of possession by the first of Elay, that is, on or before the first of May, was a condition precedent, and on which the validity of the notes and release depended. ‘Was that condition performed'? Mrs. McKinney died in possession on the day previous to the last on which delivery could be given. Previous to her death the condition was not performed, and the condition was not to be performed by her representatives. The notes were given for her interest in certain lands. Before those notes could become operative, neither the widow nor her estate were in existence. The one had descended to the silent tomb, the other passed to the owner of the fee. Until the performance of the condition, the notes had no legal existence; and as the condition was not performed, the notes never had any efficacy. 66 Where the deed is delivered to a stranger, and apt words are used in the delivery thereof, it is of no more force until the condition be performed, than if.I had made it and laid it by me, and not delivered it at all. If the party
The notes in question were delivered upon a certain condition. That condition was never performed. The .notes were, therefore, never operative. The defendant did, indeed, obtain possession of the premises, but that he was entitled to as owner of 'the fee. It could not be by any act. of the-widow, for she was dead.
The defendant is entitled to judgment.