Jones v. Hammett, 2 Miss. Dec. 265

Opinion.

Cooper, J.:

The appellant filed his bill in the Chancery Court of Jefferson county on the — day of--to enjoin the sale of certain lands levied on under an execution issued under a judgment in favor of Mary A. Hammett against one Ely R. Jones. The allegations of the bill are substantially as follows: That in the year 1869 the complainant was the owner of the land levied on, and on the ■ — • day of - sold the same to his sons, Frank A. and Ely R. Jones, who paid in cash the sum of $2,220.05, and for the balance of the purchase money — viz: $1,233.29 — executed their note, due January 1, 1870; that a deed was written, signed and acknowledged by himself and wife, conveying the land to the purchasers, but it was agreed that the deed was not to be delivered or enrolled until all the purchase money should be paid, but that the deed was to be placed in possession of Ely R. Jones, to be held by him as a mere custodian until the purchase money was paid, when it was tojbe delivered, to the grantees, and, if the purchasers should be unable to make the payment, the conveyance was to be returned to him and the sale cancelled; that some years afterwards, Frank A. Jones, by consent of all parties, conveyed his interest in the lands to Ely R. Jones, who assumed payment of the whole unpaid purchase money, and Frank A. Jones was released by complainant from all liability therefor; that in 1873, Ely R. Jones, finding that he would be unable to make payment of the balance of the purchase money due, agreed to hold the place as agent for complainant, and since said time has so held it, and in October, 1876, returned to him the deed, at which time complainant released Ely R. Jones from all liability on account of the purchase money then due, which exceeded in amount the value of the land; that Mrs. Hammett had recovered a judgment against Ely R. Jones in November., 187-2, in the Circuit Court of Jefferson county, under which execution had been issued and levied on the lands. The prayer is for an injunction and general relief. The defendants answered at considerable length, denying that the delivery of the deed from complainant to Frank A. and Ely R. Jones was conditional. They charge that the conveyance was an absolute one, and that that deed was not recorded because the grantees were financially embarrassed, and to record the deed would be to invite attack from their creditors. On final hearing the chancellor dismissed the bill, and complainant appealed.

It is unnecessary to examine the testimony in the cause, which is quite voluminous and conflicting. Complainant, by his bill, shows a valid and complete chain of the legal title of the land to Frank A. and Ely R. Jones. The attempt to limit the operations of the deed by depositing it with one of the grantees, to be by him held for the grantor until payment of the purchase money, howevér honestly made, is vain. A deed cannot be delivered as an escrow to the grantee, “because thus a bare averment without writing would make void a deed.” Whydon’s Case, 2 Cro. 520; Williams v. Gwin, 2 Cro. 884.

Upon delivery of a deed to a grantee upon condition, he takes it discharged of the condition. 3 Wash. on Real Prop. 268, and authorities there cited.

A delivery of a deed to one of the grantees is a delivery to both. 5 Crouch, 531.

The title, having vested in Ely R. Joneg, was not divested by a return of the conveyance to complainant. It could only be re-conveyed by writing.

Decree affirmed.

Case Details

Case Name: Jones v. Hammett

Court Name: Mississippi Supreme Court

Date Published: Feb 28, 1881

Citation: 2 Miss. Dec. 265

Court Abbreviation: Miss.