Raymond v. Smith

5 Conn. 555 | Conn. | 1825

Peters, J.

Three questions arise in this case, 1. Was the plaintiff’s release of his equity of redemption, an absolute deed, or an escrow ? 2. Was parol evidence admissible to prove the agreement relative to this instrument, or the prolongation thereof? 3. Was a consideration essential to the validity of this agreement?

1. An escrow is a deed delivered to a third person, upon a future condition to be performed by either party. It must be delivered to a stranger, and the condition mentioned. Jacob's L. Dict. verb. Escrow. 2 Roll. Abr. 25. tit. Faits. M. Shep. Touch 59. Bushell v. Passmore, 6 Mod. 217. If depositing the deed in the hands of Seeley, was a delivery, it took effect presently, and the title vested indefeasibly. If it was an escrow, it was subject to the agreement of the parties, and did not become a deed until the grantor failed to give a new note with surety, within the time specified. During that period, the deed remained in the hands of the depositary, as the agent of the grantor, to become void or valid at his election, by giving or refusing a new note, according to the agreement of the parties. "If a man," says Perkins, (sect. 142.) command a scrivener, or other man, to write a deed, viz. an obligation, in my name, to T. Downe, and he doth so; and after I seal the obligation, and command the scrivener to keep it, until certain indentures between me and the said T. Downe, containing certain conditions, be sealed and delivered; and before it is so done, the said F. Downe takes the said obligation out of the possession of the scrivener, this obligation shall not bind the obligor."

2. The execution and delivery of a deed are matters in pais ; and, like all other facts, are proveable by witnesses. The conditions on which the deed was placed in the hands of the depositary, were necessarily mentioned by parol; and while they remained executory, were variable, by mutual consent; for that which exists in parol, may be discharged by parol. Eodem modo oritur, eodem modo dissolvitur. And if such contract can be dissolved by parol, a fortiori it can be varied by parol, 1 Pow. Contr. 412, 427.

3. A consideration is essential to the validity of a contract or agreement to do, or not to do, a particular tiling, or to transfer a vested right But, in the present case, the grantee parted with no such right; for he had acquired none. He had merely agreed to accept a new note with surety, in lieu of a deed, then an escrow, if the plaintiff chose to give it within a time limited for which the new security was a sufficient consideration; and the variation of this agreement, while it remained executory, required no further consideration. At any rate, the defendant Stephen Smith, obtained the deed from Seeley in violation of his lighted faith, of which he ought not to take advantage. The plaintiff ought, therefore, to be let in to redeem.

I advise a new trial.

Hosmer, Ch. J. was of the same opinion; Brainard, J. being absent Bristol, J. did not fully concur in the view of the case taken by Judge Peters, but came to the same result.

New trial to be granted.