Cherry, Smith & Co. v. Herring

83 Ala. 458 | Ala. | 1887

STONE, C. J.

We do not question the doctrine, so firmly established, that a deed can not be delivered to the grantee, to be held by him as an escrow, and to become valid and binding as a conveyance, only on the happening of an event to transpire afterwards.—Williams v. Higgins, 69 Ala. 517; 1 Dev. on Deeds, §314; 3 Washb. Real Property (5th Ed.), 317; Firemen's Ins. Co. v. McMillan, 29 Ala. 157; Simonton's estate, 4 Watts, 180.

It is generally true, that a paper, on its face a deed, though formally executed in all other respects, is nevertheless inoperative as a deed, if there has been no delivery to the grantee. Delivery, however, need not be positively proved. It is often inferred from circumstances, not the least frequent of which, in its occurrence, is the possession of the deed by the grantee. Many other acts or facts justify the presumption of delivery, but we need not enumerate them. — 3 Brick. Dig. 298, §§ 25, 26, 27; 1 Dev. on Deeds, §§ 260 et seq.; 1 Brick. Dig. 531; 3 Washb. Real Property (5th Ed.), 304.

When the testimony is indeterminate, the inquiry of delivery vel non is one of intention, to be determined by the jury.—Alexander v. Alexander, 71 Ala. 295; Murray v. Stair, 2 Barn. & Cress. 82; 1 Dev. on Deeds, §§ 262-3.

The fact that the grantee acquired, oí at some time had the possession of the deed, unexplained, raises the presumption that it was delivered to him by the grantor, and that it thereby became operative as a conveyance. We have shown above that this presumption can not be overturned, by proving that it was delivered to him as an escrow, tq become a conveyance on the happening of some future event. The reason assigned for this ruling is, that when a grantor delivers to a grantee a deed formally executed in all other respects, each of the two parties has then performed every act which he proposes to do, or can do, in reference to the execution of the paper; and these acts, without more, raise the legal presumption that the conveyance is fully executed. Doing or not doing the outside thing, upon which the effect of the delivery as a complete execution of the deed is to depend, is not a proposition to do anything further with the deed. The naked offer is, to prove a contemporaneous, oral agreement, that unless some outside, collateral, unwritten stipulation is complied with by the grantee, then this possession shall, ipso facto, be treated as no proof of delivery, and the instrument as n® deed. To allow this, would be to permit the legal effect of a deed, complete to all outside appearance, to be varied, and in many instances defeated, by oral proof of an agreement not embraced in the writing.

In the case we have in hand, the testimony offered would have tended to show that the deed was handed to Herring, the purchaser, at a point near Hooper’s office, and the two parties then went in company to Hooper, and delivered the deed to him; that Hooper indorsed on the deed that it was delivered to him as an escrow, to be delivered to Herring when one hundred and twenty-five dollars shouldbe paid by Herring to or for Stephens; and that the money was never paid, and the deed was never afterwards in the hands of Herring. Hooper is dead, and the deed was not produced. It has probably been destroyed or lost. This testimony, if received, would have tended tó show the foregoing state of facts — that the delivery to Hooper was made by the consent of both parties, with the agreement and understanding which was expressed in his indorsement, and that the delivery of the deed by Stephens to Herring, if not made that the latter might inspect it, was at most made with the understanding that it should be carried to Hooper, and placed with him as an escrow.

We need not, and do not, decide what would be our ruling, if Herring had kept the deed, and had never delivered it to Hooper. That question is not before us. We do hold, however, that the testimony offered should have been received; and if it proves that the delivery and deposit with Hooper were made as offered to be shown, and with the agreement and understanding that Hooper should hold the deed as an escrow, then the handing of the deed by Stephens to Herring was not a delivery, and the deed did not thereby become an executed conveyance. Left as the deed was with Hooper, Herring could not have obtained possession of it until some other act was done — namely, a delivery of it by Hooper, This presents all the elements of an escrow, not in Herring’s possession, but in Hooper’s.

In Gilbert v. North Amer. Fire Ins. Co., 23 Wend. 43, it was ruled, that “leaving a deed in the hands of the grantee, to be by him transmitted to a third person, to hold in escrow until the happening of a certain event, is not a delivery to the grantee, so as to vest title in him.” — S. C., and note, 35 Amer. Dec. 543. The same doctrine is declared in Fairbanks v. Metcalf, 8 Mass. 230, and in Brown v. Reynolds, 5 Sneed, 639. This doctrine is asserted without disapprobation in-1 Dev. on Deeds, §317. And in section 271, the same author says : “A delivery of a deed for inspection, or a delivery to the grantee or his agent, to be held while the grantee has under consideration the proposition whether he shall accept it or not, is not a valid delivery.” And Washburn, 5th Ed. vol. 3, 317, says: “A deed can never be an escrow, if delivered to the grantee himself, unless for the express purpose of being handed to another person.” These principles we consider sound and conservative, and we adopt them.

The rulings of the Circuit Court are in conflict with our views.

Reversed, nonsuit set aside, and cause remanded.