Upon this evidence, I do not see, how the defence can be maintained. Here, there was no delivery of either instrument to Nichols, as the deed of the party, or as an escrow, to take effect upon the fulfilment of the conditions or agreements stated. Even supposing those conditions or agreements to be fulfilled, still the land will not pass, unless there has been an effectual delivery of the deeds with the assent of the parties respectively. See Degory and Roe’s Case, 1 Leon. 152, Moore, 300; Wheelwright v. Wheelwright, 2 Mass. 447, 452; Johnson v. Baker, 4 Barn. & Ald. 440; Perk. Com. §§ 137, 13S, 142-144; Bushell v. Pasmore, 6 Mod. 217, 218. The plaintiff is therefore entitled to recover upon the consummated title to him, subsequently made.
Verdict accordingly.