This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In case of sealed contracts and other instruments under seal the weight of authority is that they can not be delivered in escrow to the obligee unless the condition of such delivery appears upon the face of the instrument.1 Thus, by the weight of authority, a deed can not be delivered in escrow to the grantee, but such delivery takes effect at once.2 So a contract under seal takes effect at once upon delivery to the obligee, and can not be delivered to him in escrow.3 If a sealed instrument shows upon its face thai the parties signing in are to be bound only in case additional parties signed, delivery to the obligee does not make the instrument operative until such additional parties sign.4 Thus a deed showing on its face that it-is to be signed by husband and wife, but which is signed by the husband alone and is then delivered to the attorney of the grantee to take effect when the wife signs, is ineffective till then.5 The courts are not unanimous as to what shows on its face that a sealed instrument is incomplete. The fact that the body of the instrument contains the names of persons who have not signed the instrument, when it is delivered, has been held not of itself to show that the signatures of those who execute the instrument are not to take effect until such additional parties signed it.6 Even in Case of sealed instruments, however, it may always be shown that a surrender of the actual custody of the instrument is not done with the intent of putting it into effect, but for some other purpose. Thus, handing a deed before proper acknowledgment by the grantor to grantee so that his lawyer can examine it,7 or handing a deed to grantee to put in the grantor's box at the bank,8 or to hold as grantor's agent, subject to his orders,9 does not amount to a delivery. So the obligor under a sealed instrument may show that the instrument was taken from his possession surreptitiously.10
35; citing Stewart v. Anderson, 59 Ind. 375.
3 Scott v. Bank, 9 Ark. 36; Dils v. Bank, 109 Ky. 757; 60 S. W. 715; Hubble v. Murphy, 1 Duv. (Ky.) 278; Hurt v. Ford, 142 Mo. 283; 41 L. R. A. 823; 44 S. W. 228; Henshaw v. Dutton, 59 Mo. 139.
4 Bond, Hudspeth's Administrator v. Tyler, 108 Ky. 520; 56 S. W. 973; Note, Dils v. Bank, 109 Ky. 757; 60 S. W. 715.
1 Newman v. Baker, 10 App. D. C. 187. "If I seal my deed and deliver it to the party himself to whom it is made as an escrow upon certain conditions, etc., in this case let the form of words be what it will, the delivery is absolute and the deed shall take effect as his deed presently and the party is not bound to perform the conditions; for in traditionibus chartarum non quod dictum sed quod factum, est inspicitur." Shep. Touch., 59 quoted in Ordinary v. Thatcher, 41 N. J. L. 403, 407; 32 Am. Rep. 225.
2Blewett v. Ry., 51 Fed. 625; affirming 49 Fed. 126; Darling v. Butler, 45 Fed. 332; 10 L. R. A. 469; Haworth v. Norris, 28 Fla. 763; 10 So. 18; McCann v. Ather-ton, 106 Ill. 31; McGee v. Allison, 94 la. 527; 63 N. W. 322; Dyer v. Shadan, 128 Mich. 348; 92 Am. St. Rep. 461; 87 N. W. 277; Wor-rall v. Munn, 5 N. Y. 229, 238; 55 Am. Dec. 330; Miller v. Fletcher, 27 Gratt. (Va.) 403; 21 Am. Rep. 356.
3 Reed v. Latham. 1 Ark. 66; Ryan v. Cooke, 172 Ill. 302; 50 N. E. 213; Pickett v. Green, 120 Ind. 584; 22 N. E. 737; Ordinary v. Thatcher, 41 N. J. L. 403; 32 Am.