Ela v. Kimball

Woods, C. J.

1. The instruction given to the jury, that the deed, Ela to Kimball, did not take effect so as to pass the title of the land to the defendant, was correct.

It was never delivered. A delivery was necessary to give it effect as a conveyance. This is a familiar principle of the law. Canning v. Pinkham, 1 N. H. Rep. 353 . The deed was duly executed, and by George W. Ela, the friend and agent of the plaintiff, placed in the hands of Mr. Dana, to be delivered upon condition that the defendant should first pay $500 for the use of the plaintiff, or that said George W. Ela should order and direct its delivery. The condition respecting the payment of the money was never complied with, and George W. Ela never directed the delivery of the deed, and it never was in fact delivered. It continued in the possession of the agent of the grantor. It was never in the actual posession, or under the actual or legal control of the grantee. No delivery could result as matter of law from such a state of facts. It possessed none of the elements of an effectual delivery. The grantor did not part with the control of the deed, nor is an intention to do so shown, excepting upon a full compliance with the condition named.

Phillips says, “ With regard to the delivery of a deed, no particular form is necessary; it will be sufficient if a party testifies his intention in any manner, whether by action or by word, to deliver or to put it into the possession of the other party, as if a party threw the deed upon a table, with the intent that it may be taken by the other, who accordingly takes it, or if a stranger deliver it with the assent of the party to the deed.” 1 Phillips’ Evidence, (2 ed.,) 467.

It has been decided that a deed, signed, sealed, and deposited to be kept or held by the depositary, subject to the order of the depositor, is not delivered, either actually or constructively ; but, on the contrary, the terms of the deposit *134 exclude the idea of a delivery. Alsop v. Swathel, 7 Conn. 500 .

•So it is entirely well settled that, as a general rule, the delivery of a deed to a third person, upon some condition to be performed by the grantee, or upon any other condition or contingency, will not constitute a sufficient delivery to the grantee, until the performance of the condition or the happening of the contingency, and that the deed will be wholly inoperative. Bickford v. Daniels, 2 N. H. Rep. 71 ; Catlin, v. Jackson, 8 Johns. 520 ; 3 Coke 356; Hatch v. Hatch, 9 Mass. 307 ; Wheelwright v. Wheelwright, 2 Mass. 447; Ruggles v. Lawson, 13 Johns. 285 .

To constitute a good delivery, the consent of the maker of the deed is essential, and where the circumstances show that he did not consent, it is not his deed. Woodman v. Coolbroth, 7 Greenl. 181.

In Bickford v. Daniels, before cited, Mr. Justice Woodbury says, “ The general rule, in all conditions precedent, is that nothing vests till the condition be performed. And it is a solecism to say that a deed has been delivered to an individual, when he never has had either the actual possession or a right to the actual possession of it.”

The facts disclosed in the present case show most distinctly that it was not the intention of the grantor that the deed should be delivered, until one or the other of the conditions upon which it was to be delivered to the grantee, should be performed. There was wanting, then, the consent of the maker of the deed, without which, upon all the authorities, there can be no delivery ; and the grantee had neither the possession nor the right of possession of the deed. It is entirely clear, upon the facts of this case, that no delivery was shown.

2. The court further told the jury that if it was the understanding of the parties that the notes should be paid, whether the entire agreement for the sale of the land should be consummated or not, there was a sufficient consideration *135 for the notes, viz: the agreement of the plaintiff that the defendant should have the deed, upon his performing the stipulated conditions. This branch of the instructions is not, of course complained of, it being at least sufficiently favorable to the plaintiff.

3. The court further instructed the jury that if it was the understanding that in case a part of the agreement should fall through, or fail to be consummated, the entire agreement should be thrown up, and that the notes should not be paid, unless the entire trade was completed, then the plaintiff could not recover in this suit.

Was this last instruction correct? We think it was.

Upon such a state of facts, no vestige of consideration would exist. The land, in part payment of which the notes were given, did not, as we have seen, pass to the defendant, so as to form a consideration.

And upon the finding of the jury, there was no other consideration shown, not even the mere contract of the parties.

There was not even an understanding that the amount, or any part of the notes, should be paid, if the entire trade were not fulfilled and consummated; but, on the contrary, it was agreed that if the defendant should fail to fulfil the contract on his part, so as to entitle himself to the deed of the plaintiff, the whole trade should be given up and come to an end, without any payment or forfeiture on either side. Such was the effect of the finding by the jury. And the jury were well warranted in coming to that conclusion.

If the understanding had been different, G. W. Ela, who had acted as the agent of the plaintiff in making the contract with the defendant, and who well knew its terms and character, was a competent witness, and might readily have been called by the party whose interest it was to show the fact. It was not done. The omission to do it was a strong circumstance, in connection with the other facts appearing in the case, from which it might well be inferred that the *136 contract and understanding were in accordance with the verdict of the jury.

We are of the opinion, therefore, that there was no error in the ruling of the court, and that there must be Judgment on the verdict.