Hannah v. Swarner, 8 Watts 9

Hannah v. Swarner

8 Watts 9 | Pa. | 1839

The opinion of the Court was delivered by

Gibson, C. J.

No such facts are found as amount to a delivery in law. It is said in Viner’s Abridgment, Faits I, 7:—“ If a man make an obligation to two, and deliver it to one of them only, and say nothing of the other on the livery, the deed is void as to him;” for which he cites the Year Book, 3 H. 6, 19. So in Hungate’s case, 5 Rep. 103, an action was not maintained on'a bond to perform an award, if made and delivered to the defendants by such a day, on proof that it was delivered to one of them and not to the other. In the verdict before us, no more is found than that the deed was delivered to one of the grantees; for the jury explicitly say, that they are ignorant whether the delivery to him was assented to by the others. In the Bank of Washington v. Smith, 5 Serg. & Rawle 318, the assent of an absent grantee was presumed; but there was an actual delivery to a third person, and to the grantee’s present use—a circumstance which is wanting here, and which is a distinguishing one, perhaps, in all the cases. In Taw v. Bury, 2 Dyer 167 b, A delivered his bond to B to deliver it to the obligee as his deed; the obligee refused to receive it, whereupon B left it; but the obligee afterwards sued and recovered on it, because, by the first delivery it was A’s deed without delivery over, though, had it been given to be delivered over on the performance of a condition, it would have been otherwise. But if the writing be given to a stranger without any intimation or declaration of intention, it .remains inoperative; “for the bare act of delivery to him, without words, worketh nothing.” Co. Litt. 36 a. The rule to be extracted from all this, is that a delivery to a third-person for the present use of the grantee, makes the instrument a present deed; but that a delivery to his use when he shall perform a condition, makes not a present deed, and the grant may be frustrated by his refusal to perform it; and that a bare delivery to a stranger, without words o'f direction to deliver over to the grantee, either absolutely or conditionally, is merely void. Now the most favourable construction that can be-made for the defendant, is to say that, for the purpose of receiving a deed, each of the grantees must be considered as standing in the relation of a stranger to the rest, else a delivery to the one, without direction to deliver it to the others, would perfect .the deed as to all, which we have seen is not so; and here it is not *12found that there was any direction to the grantee who received the deed, it being nakedly affirmed that it was delivered to him and kept in his possession. Had it been given to him for delivery to the others also, it would have presently vested the estate in them without their consent; insomuch that they could not, on the principle of Butler and Baker’s case, 3 Rep. 25, have divested it by a subsequent expression of oral dissent. But no such fact is found; and we are unable to pronounce, on the premises, that there was a delivery in law. The difficulty is to say whether enough is found to enable us to give judgment for any one. The jury have set forth an instrument in the form of a deed, and it was their business to find a delivery in fact, or circumstances constituting a delivery in law; or to find that it was not delivered at all. The case, then, being insufficiently found, is remitted to another -jury to say either that the deed was, in fact, delivered to the grantees, if the evidence shall warrant it, or that it was delivered to one of them, and not to the rest. 'Other principles may be involved in the cause, which cannot be settled before the facts are ascertained.

Record remitted.