10 Neb. 1 | Neb. | 1880
This is a petition in error from the district court of Douglas county. The petition filed in the court below alleges in substance that Sophia Felix, a half-breed of the Sioux nation of Indians, holding certain scrip authorized to be issued under the act of Congress approved July 17,1854, located the same upon the north half of the south-east quarter, and the south-east quarter of the south-east quarter of section 9, town 15,
The petition also alleges that McCormick failed to perform all or any of the conditions of said agreement, although often requested to perform the same, and in consequence thereof the plaintiff has expended about, said controversies the sum of $5000, and was compelled to pay said widow and children the further sum of $4000, no part of which has been paid by defendant, although often requested to pay the same.
It is also alleged that on or about the twenty-fourth day of February, 1872, without the knowledge or consent of plaintiff and without the performance of all or any of the conditions of said agreement, said Watson surrendered said deed to McCormick, who had the same recorded; that the delivery and recording of said deed were unknown to the plaintiff until about the fourth day of June, 1875; that the State Bank of Nebraska recovered a judgment against McCormick, upon which an execution was issued and levied upon the lands last above described, and has advertised said lands to be sold, etc. Wherefore plaintiff prays: 1. That said deed be declared null and void. 2. That McCormick be required to reconvey said premises free from incumbrances. 8. That the sheriff and the bank be restrained from selling said lands under said judgment, etc.
Delivery is essential to the validity of a deed, and it takes effect only from the delivery. The deed may be delivered to the grantee himself or to any other person authorized by him to receive it. An escrow is a conditional delivery to a stranger, to be kept by him until certain conditions are performed, and then to be delivered to the grantee. 4 Kent Com., 454. But until the condition is performed and the deed delivered over, the estate does not pass, but remains in the grantor. In the case at bar it is alleged in the petition that the deed for the land in question was placed in the hands of "Watson, not to be delivered to McCormick until he had performed certain conditions, and that on or about the twenty-fourth of February, 1872, without the knowledge or consent of the plaintiff, and without the performance of any of the conditions of the agreement, Watson surrendered the deed to McCormick. This being the case the title did not pass by such conveyance. And as the execution could only be levied on the actual legal estate of McCormick in the premises in question, and the plaintiff still being possessed of the legal estate, the injunction should have been sustained. The equitable interest of McCormick in the premises may, perhaps, in a proper case be reached by proceedings in aid of execution, but, so far as appears by the petition, is not liable to levy and sale upon execution.
We deem it unadvisable to determine on demurrer to the petition the question of the validity of the contract. The judgment of the district court is reversed ■and the cause remanded for further proceedings.
Reversed and Remanded.