10 Pa. 285 | Pa. | 1849
In Souverbey v. Arden, 1 J. C. R. 240, it is ruled, that the declarations of the intention or understanding of a grantor, different from the intent apparent on the face of the deed or of conditions annexed to it, to be effectual, must be made atj^he time of executing it. That if, at the time of executing a deed, there was no delivery or intention to deliver — these are facts which should be explicitly proved by the grantor. If, therefore, the acts and declarations of Mr. Bradford, at the time of the execution and acknowledgment of the deed, amounted to a delivery, his subsequent conduct the next day cannot affect or divest the title. The question must be examined in reference to that point of time, throwing entirely out of view what the witness proved afterwards took place.
The 5th section of the act of 1715 enacts, that all recorded deeds, &e., shall have the same force and effect for giving possession and seisin, and making good the title and assurance of lands, tenements, and hereditaments, as deeds of feoffment with livery of seisin, or deeds enrolled in any of the king’s courts of record at Westminster have, in the kingdom of Great Britain.
Now, although recording the deed is not an absolute delivery, but only evidence of it, as is ruled in Chess v. Chess, 1 Penna. 34, yet, as the fact of delivery is the assurance of the title in the1 hands of an innocent purchaser, it is entitled to great weight and consideration. A purchaser for value has a right to act on the faith that it has been signed, sealed', delivered, and acknowledged, as it purports to be, in proper form and by proper parties. ’ He cannot suppose it was surreptitiously taken from the grantor, and put on record by circumvention and fraud; and hence, as is decided in Souverbey v. Arden, already cited, before he can he deprived of his property, the facts which avoid his title must be
But this case, be it remarked, is stronger than the case cited; for there was not only a complete and unconditional acknowledgment of the signing and delivery, but the grantor did not even retain the deed, but left it with the magistrate. Shepherd, in his Touchstone, p. 57, lays it down that delivery to a strañger will be a sufficient delivery if he has authority to receive it, or if made for the use and on behalf of the grantee. Delivery to a third person for the use of the party in whose favour the deed is executed, where the grantor parts with all control over the. deed, makes the deed effectual from the instant of such delivery, although the person to whom the deed is so delivered be not the agent of him to whose benefit the deed is made. Can there be any question, says Bayley, J., in Garnons v. Knight, that delivery to a third person for the use of the party in whose favour the deed is made, when the grantor parts with the whole control
- The condition or qualification, if any, was made to Mr. Curtis on the following day; but that was too late, as it was not until they title was vested in the grantee. To the same effect is Lloyd v. Bennet, 8 C. & P. 124. There a person made a deed of gift of all his real estate to his daughter; he signed and sealed it, and no one being present but the attesting witnesses he said: “I deliver this as my act and deed.” After this he desired a third person to keep it, and not deliver it to his granddaughter till he was dead, it being suggested to him that she might otherwise take his property from him in his lifetime; it was held that the delivery of the deed was complete. It is contended with great force that the deed being perfect in form and complete, it being duly recorded and the grantee in possession, a third party having innocently invested hiS' money on the faith of such circumstances, it rested • on the plaintiffs to show strictly that the condition, if any, was not complied with. The plaintiff in error insists that the grantee ought to show that Blight did not deliver the deed, that he had not received the purchase-money, or that Curtis had not received it. "We deem these facts important, and are of opinion that the burthen ofr proving this was thrown on the grantor. There was no evidence that the deed had not been delivered by Blight, one of the grantors; that he had not received the purchase-money, except what amounts to little, if anything, that he does not charge himself with it in a subsequent and separate account; nor was there any evidence that Curtis had not received the purchase-money, except the testimony of Mr. Bradford, that he never accouiited for it to .him, nor, so far as he knew, to any other person. As the burthen of proof is on the grantor, he must establish these facts, even if it be necessary to examine Mr. Darrach for that purpose. If the attesting witness had been present at the time of the execution of the deed before the alderman, they must have been called by the grantor: Markley
Blit it is unquestionable law, that a deed cannot be made an escrow by any other declarations than are made at the time of signing and executing the instrument. This is so held, in effect, in Souverbey v. Arden, 1 J. C. R. 240, where it is ruled, as has been already said, that the declarations of the intention or understanding of a grantor, different from the intent apparent on the face of the deed, or of a condition annexed to it, to be effectual, must be made at the time of executing it. It is the duty of the grantor, as the Chancellor truly says, to speak then, and declare his intentions, if any he has, inconsistent with the natural and necessary result of the solemnity.
The general principle of law is, that the formal act of signing, sealing, and delivery, is the perfection and consummation of the deed; and it lies with the grantor to prove clearly, that the appearanees were not consistent with the truth.
The presumption is against him, and the task is on him to destroy that presumption by clear and positive proof that there was no delivery, and that it was so understood at the time.
■ But, granting the deed was deposited with Curtis, as an escrow, to be delivered only on the performance of a special condition, and, in violation of his instructions, he delivered the deed without exacting payment, does that avoid the title of the defendant, who is a bond fide purchaser, without notice? This is the next question. The first reflection which strikes us is, that, if a title may be avoided under such circumstances, no purchaser is safe. This is a strong ease, for here the defendant is an innocent purchaser for value. He invests his money on the faith of the solemn acts and declarations of the plaintiff. These acts and declarations were made before a magistrate, duly empowered for that purpose, certilled to by him in proper form, duly recorded on the records of the county, which, by the act of 1715, is to have the same force and effect for giving possession and seisin, and making good the title and assurance of the law, as a deed of feoffment, with livery of seisin, &c. Moreover, it appears that, at the time of the purchase, the vendee was in the actual possession of the premises. There was, therefore, nothing to put him on his guard. It must require a very strong case, as the plaintiff in error justly contends, to permit a grantor to aver against the confidence thus reposed in his acts and declarations, exactly the opposite of those acts and
Here Curtis, who, it is alleged, delivered the deed contrary to his instructions, was the agent of the grantor.
: If a man employs an incompetent or unfaithful agent, he is the cause of the loss so far as an innocent purchaser is concerned, and he ought to bear it, except as against the party who may be equally negligent in omitting to inform himself of the extent of the
But this principle must not be extended to a person who has no possible means of protecting himself, who acts on the presumption that the records of the county are not intended to mislead, but speak the truth, that the acts and declarations of the grantor are such as they purport to be. If the grantor is injured by the conduct of his agents, the remedy is against them; surely there is no reason that it should affect an innocent purchaser, who pays his money on the faith that his title is good. Nor is it any answer that he may protect himself by proper covenants. This, in many cases, may be impracticable, and would amount to this, to discourage all sales or transfers of property whatever. This case was ruled on the idea that the title of the original purchaser was void. The court instructs the jury that the hinge on which the case turns is, whether Darrach got the deed from Curtis without paying the purchase-money. i( If you find he did, it is my business to tell you the deed is worth no more in his hands than a blank sheet of paper, and the defendant cannot make title to it, whether he knew of the original defect or not. Without delivery by the grantors, or some one authorized by them, the deed is imperfect, or rather no deed at all, and it cannot be delivered on the authority of the grantors, except on the condition prescribed by them.” Again, the court say that “ if he (Curtis) delivered the deed without having received the purchase-money, it was an incomplete deed, or rather no deed at all, and it would remain so, even in the hands of an innocent purchaser, to this day; and I say to you, by way of direction, as matter of law, of which it is the business of the court to judge, that it would confer no title on defendant or to anybody else.” But this is an erroneous view of the law, for, as is ruled in Pratt v. Holman, 16 Verm. 530, the deed is operative, there being a sufficient delivery, notwithstanding the agent did not comply with his instructions. It is not the case of condition, but the ordinary case of a breach of instructions, which at most makes the deed voidable, but not void.
The agent has the power to deliver the deed, and when he does not comply with his instructions, he becomes answerable to his principal. If this principle be sound, the deed would be void by the omission to receive one cent of the purchase-money, a proposition which would shock the common sense of every man.
It would be incapable of confirmation, as, in the language of the Chief Justice, it would be no deed at all — a mere sheet of blank
The deed was simply void. Besides, the case shows that the original grantor remained in the possession, which, of itself, served to put the purchaser on inquiry. 'In Van Amringe v. Morton, the deed as between the grantor and grantee, was a mere nullity — a blank sheet of paper — no deed air all. As, then, the grantee, who was himself a party in the fraud, had not even a semblance of title, he could pass none to another, although that person was an innocent purchaser for value. In Van Amringe v. Morton, the distinction is taken between a void and voidable deed, in reference to its effect on an innocent purchaser. On that distinction it was that the case of Price v. Junkin was ruled, 4 W. 85. It is also applicable
We perceive no error in charging that, as an act of confirmation, the covenant not to issue execution has no effect. The covenant extends only to the real estate situate in the county of Philadelphia, of which the said James Darrach was seised or possessed at the time the judgment was obtained. The property in question did not pass to James Darrach until after the rendition of the judgment. It was after acquired property, according to the defendant’s own showing. Besides, Mr. Bradford testifies, that, at the time he executed that instrument, he was ignorant of the fact that Darrach had obtained possession of the deed, &c., without payment of the purchase-money.
Judgment reversed, and a venire de novo awarded.