17 Ga. 267 | Ga. | 1855
By the Court.
.delivering the opinion.
If this be so, not only did the Statute of Limitations begin to run against the wife dum sola and continued, albeit the intervening coverture; but it commenced to run against the husband also, from the time of the marriage, which makes the
Upon this proof, Chief Justice Parsons conceded that the objection, that the testimony did not sufSciently show that these deeds were delivered by the grantor, in his life time, to the grantees or any person authorized by them to receive the same, deserved much consideration. Still, he held the law to be well settled, that if the grantor deliver any writing, as his deed, to a third person, to be delivered over, by him, to the grantee, on some future event, it is the grantee’s deed present
I would merely remark, that in all the cases quoted, the papers were delivered,, confessedly, as escrotos.
In the second .edition of the Massachusetts Beports, the propriety of this opinion is doubted, in the modest form of a Quere appended in a note to the case, by the editor, Mr. Rand.
Still, the inquiry recurs, does the delivery .of a writing as a
It is clear, from the testimony, that William B. Brown, to whom the paper was delivered, was not the agent of both parties, much less the trustee for the use of the grantees, which Wells, the witness, was assumed to have been by the proof in the case of Wheelrights. On the contrary, Brown held the deed subject to the control of Joshua Elder, as his agent, and countermandable by him, retaining, as he did and intended to do, the absolute power over it. The grantees could, by no act on their part, entitle themselves to the deed. The grantor never parted with the dominion over the title to the negroes; and the possession of Brown, his agent, was, in judgment and contemplation of law, the possession of Elder, the principal.
Did the grantees — the grand-children — acquire any title to the negroes until the deed was delivered to them after the death of Joshua Elder, the grantor ? Did Joshr.a Eider divest himself of the title to the slaves, by depositing the deed with his agent, subject exclusively to his own control, and in no event to be delivered till after his death ? Brown had no authority to deliver the deed during the life of Elder. He was expressly restrained from doing this. Had he done it his delivery would have been void, not being in pursuance of his authority. .He had only a naked power to deliver the deed, after the death of the grantor. Could Elder create such an authority to be executed after his death, uncoupled with an interest? No man can, we apprehend, by deed, much less by parol, create a naked poiver, which shall survive him. For al
These authorities and numerous others, which might be cited to the same effect, establish the foregoing position. Brown’s authority, then, was determined by the death of Elder, and the delivery after was void. Signing, sealing and the delivery of a deed, may either or all be performed by an Attorney. They must be done, however, in the life time of the grantor. If the grantor, after the execution of a deed, puts it in his scrutoire or hands it to his agent, declaring, at the same time, that it is, not to be delivered till his death, it is inoperative as a deed,' for want of actual tradition.
And upon these excepted cases, Judge Parsons put his decision, in Wheelright vs. Wheelright, and decided, that a writing delivered to another by the grantor, (not as his deed) to be delivered to the grantees, after the death of the grantor,.
But was this instrument deposited in the hands of Brown as an escrow ? In every case of an escrow there is a contract and privity between the grantor and grantees. The person to whom the deed is delivered is, by mutual agreement, constitu- ted the agent of both parties. He does not hold the deed, subject to the control of the-grantor. He has no power over it, and can no more countermand the delivery of an escrow than of an absolute deed. And it is always in the power of the grantee to entitle himself to the deed and to the estate, by performing the stipulated condition. And when performed, the deed takes its whole effect by force of the first delivery, without any new delivery. (Penyman's Case, 5 Coke, 84, b.) But here no money was to be paid — no condition to be performed. The delivery was dependent merely upon the lapse of time. In such a case, is it necessary or proper to resort to a violent fiction, ut res valeat, ¿•c.?
In every one of the excepted cases cited by Judge Parsons, there was a condition to be performed, as a part of the contract, and that, too, for a valuable consideration. Under such circumstances, there may be some propriety of putting a case in this class of exceptions. But such was not the case of Wheelright; neither is it the case before us. We say this with all possible respect for the eminent Lawyer who made that decision.
In Habergham vs. Vincent, 2 Vesey, Jr. 204, this, whole subject was elaborately discussed and the law deliberately settled as here stated. All the authorities that bear on this question are there collected, on which that profound Lawyer, Justice Butter, says : “ These cases have established, that an instrument in any form, whether a deed, poll or indenture, if the obvious purport is not to take place till after the death of the person making it, shall operate as a will. The' cases for th.at, are both at Law and in Equity ; and in one of these there were express words of immediate grant, and a consideration to support it as a grant; but as, upon the whole, the intention was, 'that it should have a future operation, after death, it was considered as a will.” (p. 231.)
The result of the whole matter is, then, that the plaintiffs cannot claim title to the property in suit, under this instrument,
We see no error in the Court in allowing the testimony of Chandler to be introduced, as to the claim of title to the negroes by Elder, while he had them in possession, not that he could actually create title in himself by such declarations, but they served to rebut the presumption, that he held as trustee for his daughter; and thus, answered the purpose of fortifying his possessory title.