In looking at the cases in equity upon this head, much will be found to turn upon the nature of the instrument, and the purpose for which it was intended : Bryan v. Wash, 2 Gilm. 557; Souverbye v. Arden, etc. Thus, in the person for whose benefit it purports to be, on some condition or other. If that condition be performed, it Ward v. Lamb, Prec. Ch. 182, the Court refused to decree the giving up of a voluntary bond made to a daughter, to protect the obligor from taxation, and retained by him; and in Cecil v. Butcher, 2 Jac. & W. 573, the Court refused to enforce a conveyance made (and retained) by a father in favor of a son in order to give him a qualification to kill game, and the Master of the Rolls, after viewing the authorities, said, "They have not depended solely upon the question whether the party has made a voluntary deed; not merely upon whether having made it, he keeps it in his own possession; not merely upon whether it is made for a particular purpose; but when all these circumstances are connected together, when it is voluntary, when it is made for a purpose that has never been completed, and when it has never been parted with, then the courts of equity have been in the habit of considering it as an imperfect instrument:" Ward v. Ward, 2 Hayw. 226; Jackson v. Inabnit, 2 Hill Ch. 411; Kirk v. Turner, 1 Dev. Ch. 14.
The acceptance by the grantee of a deed is as essential to its validity as its delivery by the grantor. It rests, however, upon much stronger presumption where the deed purports to confer a benefit, and an actual acceptance need not then be shown in the first instance, either by the grantee himself, or any one beneficially interested under it: Butler and Baker's Case, 3 Co. 26 b; Thompson v. Leach, 2 Ventr. 202; Hatch v. Hatch, 9 Mass. 307; Belden v. Carter, 4 Day, 66; Church v. Gilman, 15 Wend. 656; Reed v. Marble, 10 Paige, 409; Tate v. Tate, 1 Dev. & Bat. (Eq.) 22; Halsey v. Whitney, 4 Mason, 206. The presumption is, of course, however, liable to be rebutted, and it will be nearly, if not quite, overthrown in cases where the acceptance of the deed confers no benefit, or inflicts a positive harm upon the other party: Jackson v. Bodle, 20 Johns. 184; Camp v. Camp, 5 Conn. 300; Renfro v. Harrison, 10 Mo. 411.
How far the relation back of the subsequent acceptance to the original delivery will affect the attaching of intermediate interests, is a question of some practical importance. In Wilt v. Franklin, 1 Binn. 502, the rights arising under an execution levied between the period of delivery of an assignment for creditors, and assent by the grantee-a space of four days,-were postponed to those arising under the deed: Merrills v. Swift, 18 Conn. 257, was very similar to Doe v. Knight. A debtor being in failing circumstances executed a mortgage, and delivered it to one for the use of the mortgagee. The mortgage was immediately recorded, and, some time after, was assented to by the mortgagee, and it was held to be entitled to a preference over an intermediate attachment. In Harrison v. The Trustees of Phillips' Academy, 12 Mass. 455, where an embarrassed debtor made a conveyance to his sureties by way of precautionary indemnity, of which they were ignorant till a month afterward, when it was assented to by them, it was said by Parker, C. J., that creditors might have arrested the transaction by an execution levied in the intermediate time; but there was a question of fraud in the case, evidence of which would, it is conceived, always invalidate such a transaction; and the remarks on Wilt v. Franklin in M'Kinney v. Rboads, 5 Watts, 343, were directed to the want of 14 becomes an absolute deed; till then it continues an escrow, and, if the condition never be performed, it never becomes a deed at all. Thus, at a meeting for delivery in that case, apart from which, it is said, that the decision is perfectly correct. Where, moreover, a deed is delivered as an escrow, although, as is 6tated in the text, it relates back to the time of the original delivery: Foster v. Mansfield, 3 Met. 412; Ruggles v. Lawson, 13 Johns. 2S5; yet it must be borne in mind that this is for certain purposes only-that this fiction is resorted to in cases of necessity, to prevent injury and uphold the deed; as, for instance, where a feme sole delivers a deed as an escrow, and marries before the condition is performed, it is her deed from the first delivery, as otherwise her marriage would defeat it: Perkins, 139-140; "for in such case from necessity, and ut res magis valeat quam pereat, to this intent by fiction of law, it shall be a deed ab initio, and yet in truth it was not her deed until the second delivery:" Butler and Baker's case, 3 Co. 36 a. Hence, in accordance with the maxim, in fictione juris semper equitas existat, such relation back will not operate to defeat the rights of third persons attaching in the interval: Frost v. Beek-man, 1 Johns. Ch. 288; Green v. Putnam, 1 Barb. 504; Lewis v. Taylor, Ril. Ch. 179; Carr v. Hoxie, 5 Mason, 60; Merrills v. Swift, supra; and thus in Jackson v. Rowland, 6 Wend. 666, where a deed was delivered as an escrow, and previously to its subsequent absolute delivery a judgment was obtained against the grantor, under which the land was sold, it was held that the purchaser under this judgment took a good title to the land; and so in Shirley's Lessee v. Ayres, 14 Ohio, 307.
Where a deed is rejected by the grantee, the title revests in the grantor, provided the dissent be made by the party really in interest. Thus, where a conveyance was to A. to the use of B., A.'s dissent was not allowed to defeat the use limited to B.: Gorton's case, 2 Roll. Ab. 789, pl. 7. In these cases of rejection the question also arises as to intermediate interests and estates created by the deed. In Thompson v. Leach, 2 Ventr. 198, it was finally held in the House of Lords, reversing the judgments below, that a deed of surrender by tenant for life to a remainderman, barred intermediate contingent remainders, though the grantee rejected the deed when he knew of it; and in Read v. Robinson, 6 W. & S. 329, a debtor executed a general assignment for the benefit of his creditors, and delivered it to one of his sons, with instructions to take it to one Ward, who had been making out his father's accounts. Ward took the deed to the assignee, who refused to receive it, and said he would have nothing to do with it. An assignee was then appointed by the Court, who brought trover against the executor of the grantor's will, executed after the assignment. The Court below ordered a nonsuit, on the ground of the refusal of the assignee; but this judgment was reversed by the Supreme Court, which held, that although by the rejection the title might have been remitted to the grantor in case the grantee were the party beneficially interested, yet that the instrument being a trust for creditors, the latter were the parties in interest, and that by the transmission of the deed for acceptance to the assignee, the title instantly passed at law, and it could not be divested by the subsequent disagreement by the assignee; thus showing, as was said by the Chief Justice, in speaking of Thompson v. Leach, "that intermediate interests may fasten on the title, which it is not in the power of the grantee's disagreement to unclasp." executing a composition deed for performance of which the defendant was to be surety, it was signed and sealed by him; but it had been previously agreed that the deed should not be operative unless all the creditors sealed it, and it was then delivered *to one of the creditors, in order that he might get it executed by the others. This he failed to effect, and in an action against the defendant the deed was held to be a mere escrow (6). And even where a subscribing witness to a bond stated that it was attested, sealed, and delivered in the usual way, no other words than those which are usual on the execution of a bond being used by the defendant when he executed the instrument, but that before and at the time of the execution it was agreed that it should remain in his (the subscribing witness's) hands, until the death of Lord Stair, and until certain promissory notes were given up, and that the bond was placed in his hands upon that condition, the Court held that it was a question of fact upon the whole evidence whether the bond was delivered as a deed to take effect from the moment of delivery, or whether it was delivered upon condition that it was not to operate as a deed until the death of Lord Stair, and until the notes were delivered up (c). At a new trial of the case, the Lord Chief Justice, Lord Tenterden, told the jury that if the instrument was delivered as the deed of the defendant binding on him at the time, although it was delivered on the faith and confidence which he reposed in the attesting witness (who was his *attorney), that he would not part with it until the death of Lord Stair, and until the notes were delivered up, it immediately became the defendant's deed. And al-though the witness in fact parted with it before Lord Stair's death, and before the delivery up of the notes, in violation of the trust reposed in him, it was still the defendant's deed. But if the delivery itself at the time was conditional, so as not to constitute any present obligation, it was an escrow or writing merely, and not a deed, and the condition of the delivery having been broken it had never become the deed of the defendant. But in order to make the delivery conditional, it was not necessary that any express words should be used at the time; the conclusion was to be drawn from all the circumstances. It obviated all question as to the intension of the party, if at the time of delivery he expressly declared that he delivered it as an escrow; but that was not essential to make it an escrow. And, therefore, where a deed executed by one party is sent to the agent of the other in a letter explaining that it is executed only on condition of a counterpart being executed by the latter, such evidence has been considered sufficient to show that it was sent only as an escrow to take effect after execution of the counterpart (d).