The manual surrender of a sealed instrument to a third person does not necessarily create an immediate obligation. The instrument may be delivered in escrow.53 Acquisition by the grantee of the escrow before the performance of the condition upon which it was to be delivered, will not make the instrument binding, whether the fault was due to the person in whose hands the deed was put as an escrow or to the fraud of the grantee.54 It was the rule of the common law that though delivery could thus be made to a third person as an escrow 55 it could not be so made to the grantee and the rule still seems generally accepted that a delivery to the grantee necessarily makes a deed immediately effective though there are occasional inconsistent decisions,56 and the distinction is somewhat fine between delivering in escrow to the obligee and entrusting the manual possession to him without the intention necessary to constitute a delivery. Delivery to a third person to hold merely as the grantor's agent does not constitute a delivery even in escrow, since the deed may be recalled, 57 whereas when a deed is delivered in escrow, the interest of the grantee or obligee is irrevocable by the grantor's death or otherwise.58

Oh. St. 377; Henry v. Phillips, 105 Tex. 459,1518. W. 533; Douthat v. Roberts, 73 W. Va. 358, 80 8. E. 819; Devlin, Real Estate (3d ed.), Sec. 262.

51 Storey v. Storey, 214 Fed. 973,131 C. C. A. 269; Renehan v. McAvoy, 116 Md. 356,81 Atl. 586,38L. R. A. (N.S.) 941; Clark v. Cresswell, 112 Md. 339, 76 Atl. 579; Satterly v. Dewick, 197 N. Y. 590, 91 N. E. 1120; Rountree v. Rountree, 85 S. C. 383, 67 S. E. 471; Butts v. Richards, 152 Wis. 318, 140 N. W. 1, 44 L. R. A. (N. S.) 528.

52 The numerous authorities on the delivery of deeds are collected in Devlin on Real Estate (3d ed.) Sec.Sec. 260 et seq.

53Perkins Profitable Book, Sec.138, " And if I make a deed and deliver it to a stranger as an escrowl, to keep until such a day, Ac. upon condition, that if before that day he to whom the escrowl is made shall pay to me ten pounds, give me a horse, enfeoff me of a manor, or perform any other condition, then the stranger shall deliver this escrowl to him as my deed; in this case, if he deliver the same to him as my deed before the conditions or condition fulfilled, it is not my deed sim-pliciter. But if the conditions or con-dition be fulfilled, and the escrowl delivered by him (after the conditions performed) as my deed, then it is my deed and shall bind me."

54Wood v. French, 39 Okl. 685, 136 Pac. 734; Sharp v. Kilbora, 64 Or. 371, 130 Pac. 735; Devlin on Real Estate, Sec.822.

In Sheppard's Touchstone, p. * 59, it is said, "where the deed is delivered to a stranger, and apt words are used in the delivery thereof, it is of no more force until the conditions be performed, than if I had made it and laid it by me, and not delivered it all; and therefore in that case, albeit the party get it into his hands before the conditions be performed, yet he can make no use of it at all, neither will it do him any good." But see infra, Sec.Sec. 1244 et seq., and as to the possible rights of a purchaser for value from the grantee, see Tiffany, Real Property, {406.