Leppoc v. National Union Bank

Alvey, J.,

delivered the opinion of the Court.

The deed of Davidson and wife to the bank was made on the 27th of March, 1867, and the attachment was laid in the hands of the latter on the 3d of April following, and before the deed of re-conveyance from the bank to Davidson. The case was tried in December, 1868, on the plea of nulla bona by the bank, and the question raised by the prayers embraced in the bill of exception taken by the appellants, is, whether the deed of the 27th of March, 1867, was duly delivered to and accepted by the bank, so as to conclude and bind it as against tlie grantor and his creditors.

It was objected in the Court below, and also in this Court, that evidence of the arrangement and understanding on which the deed was to have been made to and accepted by the bank, was inadmissible, as being in contravention of the solemn agreement of the parties, evidenced by the deed itself. But we think there is nothing in this objection, and that the Court below was right in admitting the evidence. Evidence of delivery and acceptance of a deed is always from the nature of things, extrinsic, being in no case furnished by the contents of the deed itself. Delivery may be inferred from *144 circumstances, and, generally, the intention of the grantee to accept the deed will be presumed, if nothing to the contrary be shown, as the law intends that a party will accept what is for his benefit. But to constitute a good delivery and acceptance, the intention of both grantor and grantee is essential, and whether there was such intention and consent on the part of both parties in reference to the deed in question, was matter of fact to be found by the jury. And the rule which excludes parol or verbal evidence to affect that which is written, was not at all infringed by the admission of such evidence to show that the instrument was void, or that it never had any legal existence or binding force, for want of due delivery and acceptance. 1 Greenl. Ev., sec. 284.

In this case, the whole question of the liability of the bank depends upon the facts submitted to the jury by its prayer, which was granted, and according to which the verdict was found adverse to the appellants. The facts thus submitted to the finding of the jury were, that the arrangement between Davidson and the bank in reference to the payment of the consideration money mentioned in the deed of the 27th of March, 1867, was conditional, and that the deed was not to be accepted, or become operative and obligatory until the term of the proposed arrangements should be approved of by the board of directors and of its counsel. That the board referred the matter to its counsel, and he, disapproving of the deed, and advising against it, the fact of such disapproval was communicated to Davidson, the grantor, and thereupon, on the 25th of May, 1867, the property was re-conveyed to him by the bank. These facts having been found by the jury, the question is, whether there was any obligation existing at the time of laying the attachment, on the part of the bank, to pay and apply the consideration mentioned in the deed of the 27th of March, 1867, according to the understanding upon which the deed was to be made ? Eor if the obligation was then complete and binding on the bank, no subsequent re-conveyance by it to Davidson could affect the appellants’ rights as attaching creditors.

*145 But, had the deed been accepted by the bank at the time of laying the attachment ? As matter of law, on the facts found by the jury, we are bound to say that it had not been accepted. The delivery of the deed was certainly essential to the transfer of the property; and, without such transfer, no obligation was imposed on the bank. The delivery, to be effectual, required acceptance of the deed by the bank, and, as we have seen, that was dependent on events that never occurred; and, although the deed was made and placed on record, these were acts of the grantor, ’without sufficient legal sanction of the bank to charge it, as grantee. To constitute a good delivery, says the Supreme Court of the United States, in Younge vs. Guilbeaa, 3 Wall., 636 , “ the grantor must part with the possession of the deed, or the right to retain it. Its registry by him is entitled to great consideration upon this point, and might, perhaps, justify, in the absence of opposing evidence, a presumption of delivery. But here, in (that case,) any such presumption is repelled by the attendant and subsequent circumstances. The registry, was, of course, made without the assent of the grantee, as he had no knowledge of the existence of the deed, and the property it purported to convey always remained in the possession and under the control of the grantor.” And, in the cases of Hutchins vs. Dixon, Ex’r of Hooper, 11 Md., 29 , and Phelps & Stewart’s Lessee vs. Phelps, 17 Md., 120 , it was decided by this Court, that, while a deed duly acknowledged and recorded, will be treated as having been delivered to and accepted by the grantee, in the absence of all proof to the contrary, those facts only give rise to a prima facie presumption, liable, of course, to be repelled.

But, it is supposed that the bank, in this case, manifested its acceptance of the deed by the conduct of its officers; and the prayers of the appellants, which were rejected, were founded on the facts that the officers of the bank were made aware of the making and recording of the deed by Davidson, and did not dissent; that the Cashier furnished the revenue stamp *146 for the deed; that the original deed, after being recorded, came into the possession of the Cashier; and that the property was subsequently re-conveyed by the bank to Davidson, as being legally sufficient to warrant the Court in declaring that the deed of the 27th of March, 1867, had been accepted.

In regard to the proposition involved in the appellants’ prayers, it is sufficient to say that, in the first place, Avhatever Avas said or done by the President and Cashier of the bank, or either of them, in reference to the matter, not appearing to be authorized, would not bind the bank, because not within the scope of their ordinary duties. The City Bank of Baltimore vs. Bateman, 7 Har. & John., 104; Bank of the United States vs. Dunn, 6 Pet., 51 ; Bank of Metropolis vs. Jones, 8 Pet., 12 . And, in the second place, the whole proposed arrangement under and by which the deed was to be made and accepted, was onfy conditional, and Avas expressly made subject to the approval of the Board of Directors and of its eounsel. The Board only approved of it provided the title to the property would be valid, and the agreement should be found feasible. It was advised, and became satisfied, that such would not be the case, and of that fact Davidson was notified, and the negotiation ended. This conditional arrangement, then, was never consummated, and the bank never assumed any liability under it. It was all mere matter of negotiation, without accomplishing the objects the parties had in view.

As to the deed of re-conveyance, given in evidence by the appellants, it must be taken with its recitals and according to which the deed of the 27th of March, 1867, was made with the understanding that it should be accepted, if approved by the counsel of the bank, but not otherwise j and that it was filed for record without such approval. Such being the case, as shewn by the appellants’ own proof, the deed of reconveyance could only operate as a disclaimer of record, and not as evidence either by way of estoppel or otherwise, of the acceptance of the previous deed of the 27th of March, 1867.

*147 (Decided 23d February, 1870.)

The conditional arrangement between Davidson, the defendant in the attachment, and the hank having thus failed, it is very clear that the former had no claim against the latter in respect of such proposed arrangement; and' as the appellants, who seek by their attachment to, be substituted to the rights of their debtor, could occupy no better position than Davidson himself, and could only claim condemnation of what was really due to him from the bank, it follows that they could take nothing by their attachment.

Approving of the several rulings of the Court below, to which exception was taken, we affirm its judgment.

Judgment affirmed.