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but a person cannot, unless authorized by deed, execute an instrument as the act of a person who is absent; and every letter of attorney must be by deed." Shep. Touch. 57. The plain meaning of the passage, says Ruffin, C. J., is that what a person does in the presence of another, in his name and by his direction, is the act of the latter, as if done exclusively in his own person; but that what is done out of his presence, though by his direction and in his name, cannot in law be considered an act in propria persona, but one done by authority; and that wheu the authority is to execute a deed by signing, sealing and delivering it for the party, and especially the delivering it, it cannot be oral but must be by deed. Kime v. Brooks, 9 Iredell 220.
Not only in England, and by C. J. Marshall, and in North Carolina, but in other states is the ancient law adhered to, that a valid deed cannot be made by writing it over a signature and seal made upon a blank or an empty sheet of paper. It is adhered to in Ohio, Ayres v. Harness, 1 Hammond 368; Tennessee, Gilbert v. Anthony, 1 Yerger 69; and Maryland, Byers v. McClenachan, 6 Gill & J. 253, 4. The decisions in Virginia are on the same principle. Asbury v. Calloway, &c. 1 Wash. 72; Harrison v. Tiernans, 4 Raud. 177; Rhea v. Gibson's ex'or, 10 Grat. 215.
The weight of authority leads to the conclusion that at common law it is necessary to the validity of a contract by an instrument under seal, that it should be written and delivered; that unless these two circumstances concur there is no deed binding the party whose seal is affixed to the paper; that when they concur he is bound according to the writing of which delivery is made by him, or in his presence, or by an attorney legally constituted by deed for the purpose; and that he is bound no farther. Co. Lit. 35b; Perkins, § 118; Shep. Touch. 54; Harrison v. Tiernans, 4 Rand. 177; Steiglitz &c. v. Eggenton &c. 1 Holt. N. P. 141; 3 Eng. Com. Law Rep. 54; Van Arminge v. Morton, 4 Whart. 387.
When there are several parties to a deed, it may be considered as one entire transaction, operating as to the different parties to it from the time of the execution by each, but not perfect till the execution by all the conveying parties. If in the progress of such a transaction, there be an alteration by interlineations or filling up of blanks, subsequently to its execution by one party, the deed may still be valid, so as to convey property from a party who executed it afterwards; and the alteration will still leave the deed valid as to the parties previously executing it, provided, such alteration has not af fected the situation in which they stood. Doe v. Bingham, VOL. II.-2
4 Barn. & Ald. 672; 6 Eng. Com. Law Rep. 560; Hall v. Chandless, 4 Bing. 123; 13 Eng. Com. Law Rep. 369.
7. Instrument fully written, and sealed, may be delivered as an escrow to a stranger.
When the instrument has been not only sealed, but fully written before its delivery by the party, the rule in respect to its delivery as an escrow to a stranger, is universally conceded. Cabell, J., in Hicks &c. v. Goode, 12 Leigh 490; Pawling &c. v. U. States, 4 Cranch 219; Murray v. Earl of Stair, 2 Barn. & Cress. 82; 9 Eng. Com. Law Rep. 35. Thus, if the grantor make a writing, and seal it and deliver it to a third person as his writing or escrow, to be by him delivered to the grantee, upon some future event, as his the grantor's deed, and it be delivered to the grantee accordingly, it is not the grantor's deed until the second delivery. And if the grantee obtain the possession of it before the event happen, yet it is not the grantor's deed, and he may avoid it by pleading non est factum. Perkins 137, 138, 142; Wheelwright &c. v. Wheelwright, 2 Mass. 452; Bodwell v. Webster, 13 Pick. 414, 15.
Where it was alleged by one that he agreed to join the principal obligor as his surety in a bond, and executed and delivered the same as an escrow, upon condition that a second person should also join in and execute the bond as co-surety; and that person alleged that he agreed to join as surety in the bond and execute and deliver the same as an escrow, upon condition that a particular individual should join in and execute the bond as co-surety, and that individual never executed the bond; the court of appeals of Virginia held that if these allegations were proved, neither of the parties making them was liable on the bond. King v. Smith &c. 2 Leigh 157.
Generally, a deed delivered as an escrow, to be delivered over as the deed of the party making it, on a future event, takes its effect from the second delivery, and will be considered as the deed of the party from that time. Perk. 143, 144; 3 Co. 35b, 36a; Wheelwright &c. v. Wheelwright, 2 Mass. 453. Yet there are excepted cases in which it takes its effect and is considered the deed of the maker from the first delivery. The exception is founded on necessity, ut res valeat. Thus, according to Perk. 139, 140, if a feme sole seal a writing, and deliver it as an escrow, to be delivered over on condition, and she afterwards marry, and the writing be then delivered over on performance of the condition, it shall be her deed from the first delivery; otherwise her marriage would defeat it. In Brooks' Reading, on the statute of limitations,
p. 150, there is another exception. A. delivers a deed, as an escrow, to J. S., to deliver over on condition performed, before which A. becomes non compos mentis; the condition is then performed, and the deed delivered over; it is good, for it shall be A.'s deed from the first delivery. Another exception is in 3 Co. 35b, 36a. Lessor makes a lease by deed, and delivers it as an escrow, to be delivered over on condition performed, before which lessor dies, and after it is delivered over on condition performed; the lease shall be the deed of the lessor from the first delivery. There is also a strong exception in 5 Co. 85. If a man deliver a bond as an escrow, to be delivered on condition performed, before which the obligor or obligee dies, and the condition is after performed: here there could be no second delivery, yet it is the deed of the obligor from the first delivery, although it was only inchoate : but it shall be deemed consummate by the performance of the condition. Parsons, C. J., in Wheelwright &c. v. Wheelwright, 2 Mass. 454. Therefore, with respect to the deeds in this case, it was held that if they were delivered to a person as escrows, and by him delivered over on the death of the grantor, they must take their effect and be considered as the deeds of the grantor from the first delivery, he being dead at the second delivery; and the cases in 3 Co. 36a, and 5 Co. 85, were deemed in point. The same rule is recognized in Hatch &c. v. Hatch &c. 9 Mass. 310, and Bodwell v. Webster, 13 Pick. 414.
S. Whether there may not be a conditional delivery of a bond to the obligee.
In a case before the supreme court of the United States it was admitted by the counsel that a bond cannot be delivered to the obligee as an escrow; and upon its being contended that where there are several obligees constituting a copartnership it may be delivered as an escrow to one of the firm, this was overruled; the court being of opinion that a delivery to one is a delivery to all. Moss v. Riddle, 5 Cranch 357.
In this case the counsel for the parties who had sealed the instrument admitted the doctrine against them to be more stringent than appears to be established by the weight of authority.
True it is, that in Com. Dig. Tit. Fait A 3, we find this said: "so if it be once delivered as his deed, it is sufficient though he afterwards by words explains his intent otherwise; as if an obligation be made to A and delivered to A himself as an escrow, to be his deed upon performance of a condition,
this is an absolute delivery, and the subsequent words are void and repugnant." And in support of this position, authorities are referred to. "But these," Best, C. J. observes, "are at least conflicting." Hudson v. Revett, 5 Bingh. 368; 15 Eng. Com. Law Rep. 472. Though a deed is delivered to a party, there are cases to shew that it may not be a perfect and complete deed. S. C. Indeed the next division of Comyn (Fait A 4) shews that his position about delivery to the obligee himself as an escrow is merely a technical subtlety; for while stating that a delivery cannot be to the obligee as an escrow, he yet lays down that if it be delivered to the party as his deed upon performance of a condition, it is not his deed till the condition is performed, though the party happen to have it before. The English courts have approved this position of Comyn. S. C.; and they have disapproved the passage (Fait A 3) wherein it is said, "if it be delivered as his deed to a stranger, to be delivered to the party upon performance of condition, it shall be his deed presently, and if the party obtains it, he may sue before the condition performed."
The authority quoted for this is Degory and Roe's case, 1 Leon. 152. There it is so stated by some of the judges. But the matter does not appear in Leonard to have been finally decided; and upon looking to the report of the same case in Moore 360, it appears that the case was ultimately decided the other way. Therefore it was deemed an authority in Johnson &c. v. Baker, 4 Barn. & Ald. 440; 6 Eng. Com. Law Rep. 479. The defence in this case being that the deed was delivered as an escrow and on condition that certain specified creditors of the defendant should sign it, it appeared that at the meeting at which the deed was executed by the defendant there was a conversation respecting the difficulty which might arise in case all the defendant's creditors did not execute the deed. The plaintiff's were not present at this conversation; but it was then stated that the deed should be void unless all the creditors executed it; the defendant subsequently but at the same interview executed the deed in the ordinary way, and without saying any thing at the time of the execution; and the deed was then delivered to one of the creditors who was to get it executed by others. The court of king's bench regarding the conversation which took place immediately previous to the execution of this deed as part of the whole transaction, considered the subsequent delivery of the deed by the defendant as not absolute on his part but conditional; and the condition not having been complied with, the plaintiff was nonsuited.
I take it, says Parke, B. to be now settled, though the law was otherwise in ancient times, as appears by Sheppard's Touchstone, that in order to constitute the delivery of a writing as an escrow, it is not necessary it should be done by express words but you are to look at all the facts attending the execution to all that took place at the time and to the result of the transaction; and therefore, though it is in form an absolute delivery, if it can reasonably be inferred that it was delivered not to take effect as a deed till a certain condition was performed, it will nevertheless operate as an escrow. Bowker v. Burdekin, 11 M. & W. 146.
In the United States decisions have been made on this principle.
The state of North Carolina guarantied bonds of the Raleigh and Gaston railroad company, to the amount of $500,000, and authorized the stockholders of the company to give bonds to the amount of their stock, and individuals who might be disposed to assist them, their bonds to any amount they pleased for the purpose of further indemnity of the state, over and above the property of the company already conveyed for that purpose, "provided such bond or bonds shall in the whole amount to the said sum of $500,000." The construction of this act was, that the state did not intend to receive the bonds of the stockholders or of individuals unless altogether they should amount to the sum guarantied by her; and on the other hand that the several obligors did not intend that their several bonds should be obligatory upon them but upon the same condition. And though the bond of an individual was delivered to the treasurer, who was the agent of the state to receive it, yet that delivery was regarded as conditional; and it was held that to enable the state to recover on the bond, it must appear that before bringing the action there were bonds amounting in the whole to $500,000. Bennehan v. Webb
c. 6 Iredell 57.
In a case in New York in which lands of an individual were divided into 23 shares, of $5000 each, and sold at that price to such persons as should subscribe for said shares, Walworth, C. held, in an action against a subscriber upon his covenant in the agreement, that even if the parties contemplated that the execution and delivery of the instrument should not be complete until the whole number of shares was subscribed, they might subsequently consent to an absolute delivery upon the subscription of 19 shares only, so as to make it a binding agreement as to these 19 shares. Sandford v. Halsey, 2 Denio 253.