Simpson v. McGlathery

Chalmers, J.,

delivered the opinion of the court.

One Campbell sold certain lands to Simpson, delivering bond for title and receiving notes for the purchase money. These notes he transferred for value to McGlathery, and, in order to facilitate and insure the collection, executed and acknowledged a deed conveying title to his vendee, but delivered it to the assignee of the notes, to be held as an escrow until payment of the notes.

The notes falling due, McGlathery tendered the deed, demanded payment of the notes, and, upon failure to receive it, filed this bill to subject the land.

Demurrer was interposed because the vendor, Campbell, was not made a party, and this presents the only question in the case. The point is not free from doubt, but we think that the vendor of the land was not a necessary party. The general rule mrdoubtedly is that a deed delivered as an escrow does, not take effect so as to divest or invest title imtil its second delivery, but it is equally well settled that the second delivery derives all of its force from the first, of which it is the full execution and consummation.- If, therefore, justice and equity require it, the second delivery will be made to relate back to-the first, so as properly to protect the rights of the grantee against intervening claims. Thus it was held in Whitfield v. Harris, 48 Miss., 710 , that the rights of the grantee were superior to those accruing from a judgment rendered against, *725 tbe grantor after tbe first, and before tbe second, delivery. It is also well settled that tbe death or disability of. tbe grantor, occurring after tbe first delivery, will not avoid the deed. As, for instance, if a feme sole deliver a deed as an escrow, and become a feme covert before tbe happening of tbe contingency upon which it is to be absolutely delivered, her marriage will not render necessary tbe execution of a second deed, in which her husband shall join. So, also, if a man' die or become non compos mentis before tbe occurrence of tbe event upon which bis escrow is to be delivered as an absolute deed, it is nevertheless dehvered, and will be held to pass tbe title from tbe time of tbe first execution. 3 Washb. on Real Property, 272, 273, and cases there cited. Frost v. Beekman, 1 Johns. Ch., 288 ; Wheelwright v. Wheelwright, 2 Mass., 446 ; Foster v. Mansfield, 3 Metc., 412 .

Since, therefore, neither the death or future disability of the grantor, nor intervening claims against him, would affect the rights of the parties, we can see no good reason for holding him a necessary party in the case at bar.

It will be remembered that the case stands on demurrer, and our decision is predicated upon this state of the pleadings.. We will not say that facts maj^ not be set up by plea or answer that might render the grantor a necessary party, nor that under some circumstances he could not, upon his owii' petition, be admitted as a defendant.

The decree overriding the demurrer is affirmed, and the cause remanded with leave to the defendant to answer in sixty days, or within such further time as the chancellor may deem proper.