41 N.J.L. 403 | N.J. | 1879
The opinion of the court was delivered by
The first subject of inquiry in this case is, whether a guardian’s bond, given in the common form to the Ordinary, can be delivered in escrow to-the surrogate of a county ? The proposition is stated intentionally in this general form, so as to separate the question,, for the purposes of the research, from the specialties of this particular case, and which specialties will be considered in another aspect of the discussion.
It has been frequently decided that a deed may be delivered in escrow to a co-obligor, even though such obligor be the principal bondsman. Such were the judgments in the leading cases in this state of State Bank v. Evans, 3 Green 155, and of Black v. Lamb, 1 Beasley 108; 2 Id. 455. In both of these instances the deed in Question respectively was delivered conditionally to one of the co-obligors, and -in each case the instrument was regarded as having been well delivered in escrow. This same doctrine is maintained by such a multitude of authorities that it seems hardly open to controversy anywhere, and it certainly is at rest so far as concerns our own .tribunals. It might, however, tend to misconception if this general statement of the legal'rule should not be qualified by an intimation that there may be cases in which an obligor may, by his incaution, impart to the depositary of the instrument delivered in escrow such an apparent right to pass it away in an unqualified form to the obligee, as to prevent such obligor from setting up the existence of a condition that was to have been complied with before such instrument became deliverable. This restrictive rule has been sanctioned by a number of the courts of this country, and has recently
From this explication it will be noted that the cases in this ■train proceed on the ground, not of a denial that a deed may be delivered by a surety in escrow to the principal obligor, but that an estoppel in pais may arise from the position of ■the circumstances; the consequence therefore is, that the principle thus introduced does not obtain unless the recipient ■of the bond is so situated as almost unavoidably to be misled, by the appearance of things, into the belief that the obligor in making delivery has the legal power to do such act. If there is in the affair anything to put him on his guard, as, for example, the indications on the face of such a bond as is now under consideration, which has not been executed by all the persons named in its body as obligors, the rule does not become applicable. Inasmuch, however, as the bond in the present case was not delivered by the sureties through any intermediate agency, but by their own hands, this doctrine of estoppel is not pertinent, and was alluded to only to avoid mistake with respect to the extent of the general rule that the co-obligor may hold the deed in escrow in behalf of the sureties.
As the surrogate received this bond from the sureties them
My consideration of the subject has led me to the conclusion that the county surrogate is in this respect the agent of the Ordinary alone, who is the obligee in the instrument. The procedure comprising the making of these bonds is this r a petition is presented to the Orphans’ Court, praying for the appointment of a person nominated as guardian, and offering to have executed a bond with certain named sureties; the court assenting, a bond is prepared and given to the surrogate, t who presents it to the court for approval, and, upon being passed, files it in his office. In form, the bond is between the guardian and his sureties.of the one part, and the Ordinary, or surrogate-general, of the other.
It is thus evident that unless the tradition of these bonds to the county surrogate be a tradition in law tó the surrogate-general, they are not, in point of fact, passed to him at all. It seems to me, therefore, that the county surrogate is, in this matter, the representative of his superior officer, and that therein his entire function consists in a right to accept a delivery of the bond. He has no authority to do more than this y he is not empowered to make any terms, or to assent to any conditions, in behalf of his principal; and being a public officer, the extent of his ability is known to all persons dealing with him. The receipt-of the bond on the part of the surrogate is a mere ministerial act, and in doing it he is the deputy of the Ordinary. It is, too, an official act, and, being a public officer, he cannot in such a transaction be the agent of an individual. In short, in my judgment, the surrogate-general receives this bond from these obligors by the hand of his subordinate, and, in point of law, the transaction consists of a delivery of the instrument to the obligee.
With respect to the authorities cited in the well-considered , and learned brief of the counsel of the defendants, it is to be observed that most of them relate to cases in which the impeached instrument had been' delivered on condition to a co-obligor or to a third party; and it will be found that in most of these decisions it is incidentally admitted that such a delivery cannot be made to an obligee. An exception to such current of authority is certainly to be found in the remarks of Judge Campbell, in the case of People v. Bostwick, 32 N. Y. 445, to the effect that the rule that a deed cannot be delivered as an escrow to the party who takes the interest under it, has application only to the case of a deed of conveyance, and that it is such a deed alone that cannot be delivered to the grantee on condition, the reason being that in such case the estate vests, “ which cannot be divested except by due process of law or by the voluntary execution of a deed by the grantee; ” but there seems to be no reason to believe that this novel view was the ground on which the decision of the court was rested, for Chief Justice Denio, in the expression of his conclusions, without noticing the theory of his learned colleague, adheres to the accepted doctrine, and says, “certain principles are very well established ; where a deed is delivered to a party who is the obligee or covenantee, it is impossible to annex a condition to such delivery.” Nor is it easy to understand why the grantee in a deed cannot receive such deed in escrow, if he can hold a bond under such circumstances, because, granting the capacity to become the depositary of an escrow, it seems clear that by the conditional delivery of a conveyance to him the estate would not vest until the performance of the condition, any more than it would if such delivery were to a third person. But, independent of such considerations, it seems to me quite out of the question, at this late day, to sanction a suggestion that stands in opposition to so much authority from the epoch of the Year Books to the present time.
In order to estimate fully the force of this position, it is necessary to bear in mind that the deed in question was, with respect to its legal effect, a perfect deed, so far forth as the defendants were concerned. The deed, it is true, nominated in its premises another person as an obligor, besides the parties signing in that capacity, but this did not make it less the finished act of those who did execute it. No one will pretend that if the signers of this deed had delivered it to the surrogate in its present state, without annexing any condition to its tradition, that it would not have been binding in law. The decisions are uniform and numerous to that effect. The fact of the absence of the signature of a party named has no legal significance, except that it may, as a circumstance, tend to confirm, in a proper case, the contention that the deed was deliv
Before leaving the subject, I also remark that the rule which is above applied in this case is not, in my judgment, by any means a merely technical one. To the contrary, I regard it as a wise regulation, founded in public utility, and conducing greatly to the security of persons desirous of executing contracts in a definite and assured form. The law reasonably provides that the instrument delivered shall be conclusive, with respect to its contents, as to the intention of the parties to it;' and in the same manner, and in view of the same considerations, the act of delivering the instrument should be equally conclusive. The danger to be apprehended from fraud and false swearing, as well as from the infirmity of human memory, would be as great in the one case as in the other. If a condition could be annexed to a delivery of a deed when made to the obligee himself, the very essence of. the transaction would be left to depend on the memory and truth of the bystanders. I cannot .but think that there is manifest wisdom in the old rule, that the law will regard in such transactions not what is said but what is done. Nor does it seem to me that such rule is ever, in any of its manifold applications, of more worth than when it is employed as a safeguard to persons who are of necessity represented by public officers. It must strike everyone as a most alarming idea, that any of the numerous bonds that are given to surrogates and clerks can be defeated if it can be made to appear, by parol, that any of the parties executing and delivering such instruments stated to such officers receiving it that it was to be inefficacious unless upon the happening of some event. This present case would afford a fair illustration of the practical operation of such a pernicious principle. These parties themselves deliv
There is a second aspect of this case, but which also appears to me equally unfavorable to the pretensions of these defendants, for, on the assumption of the capability of the surrogate to receive a bond in escrow, I think it plain that the legal inference from the facts found by this special verdict must be that no such delivery was, in point of fact, made.
In disposing of this point, I premise that I admit, to its full extent, the rule of exposition that was adopted in the case of Evans v. State Bank, and which was reiterated in Lamb v. Shreve, that the question whether any given delivery is conditional or not, is to be decided, not, as was at one time supposed, by a mere form of words or .turn of expression, but from the intention of the parties, as manifested by their language and acts. As Chancellor Sugden said, in the case of Nash v. Flyn, 1 Jones & La Touche 162, “now it is quite settled that it is not necessary, in delivering an instrument as an escrow, to say that it is delivered as an escrow. I have always considered it as a clear point, that if the instrument be delivered upon condition, that constitutes an escrow.” This is undoubtedly the reasonable and modern rule of construction applicable to these transactions. Nevertheless, in handling this question at the present time, there are two considerations which we must carry with us, the first being that we have to do with a special verdict, and, in the second place, that we must find, in order to make the defence available, that the delivery was conditioned with a stipulation that the instru
This verdict has not found the point, that the transfer of the deed was subject to any terms; all that it does is to ascertain certain facts, and the inquiry, therefore, is as to the legal value and effect of such facts. In the exposition of findings of this character, the rule is that when the facts found are of such a nature that clear conclusions can be drawn from them, it is no objection to the finding that the jurors themselves have not drawn such conclusions and stated them as facts. This is the theory denoted by Chief Justice Dallas, in Monkhouse v. Hay, 8 Price 256, and is in accordance with the practice in such cases as appears from Mr. Tidd’s Manual, page 897. If the circumstances presented have so uncertain a tendency as to leave the mind in doubt as to their legal effect, then indeed the court cannot make any deduction. Bearing in mind, then, the two-fold office to be performed, viz., that a conditional delivery must be found, and that only necessary conclusions are to be deduced from established facts, I will turn to the merits of this case as they are spread upon this record.
The circumstances touching the execution of this bond are these:
Lucy C. Wilson was a minor, under the age of fourteen years, and her mother petitioned the Orphans’ Court of the county of Hunterdon to appoint Robert Thatcher her guardian, offering John B. Alpaugh, Jacob Thatcher and William S. Riley as sureties on his bond. This petition being approved, a bond was, according to the practice, conformably drawn by the surrogate in the names of the guardian and his three proffered sureties. The record then narrates the occurrences touching the. execution and delivery of this instrument, in these words, to wit:
“ And that on the said 20th day of March, 1868, the said Robert Thatcher and William S. Riley went into the said surrogate’s office for the purpose of signing said bond, when the said bond was read over to them by the said surrogate, and
“ And that the said bond contained the names of said Robert Thatcher, William S. Riley, Jacob Thatcher and John B. Alpaugh, as they are now written therein, before either of the parties thereto signed the same, and when the same was read over to each one of them, and the contents made known, and that there were affixed thereto by the said surrogate, before the said parties or either of them had signed the same, four seals, as is represented in said copy.”
With respect also to the fact adverted to by counsel, that this bond was executed in view of the order of the Orphans’ Court sanctioning a bond by three named sureties, it does not appear to me to be a circumstance having any legal force. The court certainly, by reason of such direction, was not precluded
, -I 'thipk the plaintiff is entitled to judgment on this special ' verdict.