| N.Y. Sup. Ct. | May 15, 1831
It is contended by the counsel for the defendant that there is a total failure on the part of the plaintiff, to shew by competent testimony title in himself to the premises in question. He insists, that without proof of the deed from Washburn to Hay, the lessor of the plaintiff shewed no other title than that derived under the mortgage from Hay, and that it gives him no right to recover; that parol evidence of the contents of the deed was admissible only on the ground that its loss was proved by competent and satisfactory evidence, and that the credibility of the witness proving the loss of the deed having been destroyed, all evidence as to the contents of the deed should be disregarded. This objection comes too late. The witness proved the loss of the deed,
The question as to the delivery of the deed as an escrovr was submitted to the jury, and they found against the plaintiff. This would preclude him from contesting that fact here, were it not that he complains of the charge of the judge on that point. There was no objection made to the charge on the trial, nor is it now pretended that the judge erred in stating any proposition of law. He remarked that the presumption from the facts in the case, he thought, was in favor of the deed and mortgage being delivered as an escrow. Even if the judge had erred in this estimate of these facts, yet, as he properly instructed the jury as to the law, we cannot interfere. There is no reason, however, for differing with the judge or jury'on this point of the.case, unless it should be to question the fact of a delivery, in any manner whatsoever, before 1826. The facts do not show an absolute delivery at the time the deed was left with Gordon ; and, for any purpose connected with the decision of the case as it now comes before us, there is perhaps no use in examining whether they establish a delivery as an escrow or not. If the deed was not delivered as an escrow, then there was no delivery at all until 1826. It is said in the Touchstone, “ A delivery of a deed may be to a stranger, but it must be for, and on behalf, and to the use of him to whom it is made; and if it be delivered to a stranger without any such declaration, it will not be a sufficient delivery.” Touch. 57. 4 Cruise, 34. The general doctrine is, that a deed, delivered as an escrow, does not take effect until the condition is performed; Touch. 59; but there are exceptions to that rule, as where the grantor dies before the condition is performed, 4 Cruise, 35, and in some other cases where the operation of the conveyance would otherwise be absolutely defeated. In these cases the deed, from necessity, is permitted to have relation back to the first delivery. Lord Coke remarks, that to some intent the second delivery has relation to the first delivery, and to some, not; and yet, in truth.
The defendant shews title under a judgment of the court of common pleas of Washington county, docketed the 27th June, 1825. The sale was not only on the execution issued on that judgment, but on others which had been issued on judgments recovered before^ magistrates. These judgments, it was said, were not a lien on Washburn’s real property, because the transcripts were defective. The cases of Jackson v. Jones, 9 Cowen, 182, and Jackson v. Tuttle, 9 id. 233 6 Wendell, 213, S. C. in error establish the sufficiency of the transcripts; but if not, the execution from the common pleas was in all respects unexceptionable, and made the sale to Brown valid. Brown’s title overreaches that of the lessor of the plaintiff and shews a title out of him.
But it is said the defendant, being a tenant of the lessor, is not permitted to avail himself of this outsanding title. A tenant cannot dispute the title of the landlord, so long as it remains as it was at the time the tenancy commenced; but he may shew that the title under which he entered has expir
It is said that the defendant is a mere intruder, and therefore cannot shew an outstanding title. This proposition is laid down too broadly. The case of Jackson v. Harder. 2 Johns. R. 202, which is the authority for the position, does not support it unqualifiedly. The defendant in that case either entered under the title he disputed, or was a trespasser; if he entered under the title, he could not dispute it so long as it remained as it was when he entered; and if he was a