(b) Johnson v. Baker, 4 B. & Ald. (6 E. C. L. E.) 440.
It has been suggested by Professor Greenleaf, in his edition of Cruise on Real Property (tit. xxxii, ch. 1, § 25, note), that Thompson v. Leach was not the case of the grant of an estate from the absolute owner to a stranger who had no previous interest in it, but it was the annihilation of a particular estate in favor of a person to whom, on the termination of that estate, at that time by what mode soever, the whole property would belong by its original limitation, and that the case of Read v. Robinson was rather decided upon a local statute, authorizing the Court, in case of renunciation or refusal of a trustee, to appoint a new one in his place. The Court did not, however, rest its decision wholly on that ground.-R.
(c) Murray v. E. of Stair, 2B.&C. (9 E. C. L. E.) 82; Xenos v. Wick-ham, 33 L. J. (C. P.) 13, (Ex Ch.); 13 C. B. N. S. (106 E. C. L. E.) 435; L. R. 2 H. L. 296; 36 L. J. (C. P.) 313.
(d) Furness v. Meek, 27 L. J. (Ex.) 34. See Millership v. Brookes, 5 H. & N. 797; 29 L. J. (Ex.) 369.
This conditional delivery must be to some third *person; for, if it were to the party himself who is to be benefited the deed would become absolute, though the party delivering were to say in express terms that he intended it to be conditional only; for it is impossible by words to get rid of the legal operation of the delivery (e); and, therefore, where the defendant in debt on a bond endeavoured to set up a delivery as an escrow to the obligee himself, the Court thought that the plea was so clearly bad, that they would not hear any argument upon the subject. But the delivery to the solicitor of the grantee of an instrument executed by the grantor, will not convert the instrument from an escrow into a deed, provided the delivery is of a character negativing its being a delivery to the grantee (f). Although, however, where the deed is delivered to a third person as an escrow, the delivery is, as I said, conditional; yet when the condition has been performed, it becomes absolute and takes effect, not from the date of performing the condition, but from the date of the original delivery; so much so, that it has been held, that where a bond was delivered upon condition, and the obligor and obligee were both dead before the condition was performed, yet, on that event happening, it became the deed of the deceased obligor, so as to create a charge upon his assets as against his representatives (g). *It is therefore clear that in order to make a writing sealed and delivered an escrow merely, it is not necessary that express words should be used. You are to look at all the facts attending the execution, and to all that took place at the time, and, therefore, although it be in form an absolute delivery, if it can reasonably be inferred that the writing was not to take effect as a deed till a certain condition should be performed, it will operate as an escrow (A.)1
(e) Holford v. Parker, Hob. 246; and Co. Litt. 36 a.
(f) Watkins v, Nash, L. R. 20 Eq. 2G2; 44 L. J. (Ch.) 505.
(g) See Graham v. Graham, 1 Ves. jun. 272; Froset v. Walsh, Bridg. 51.
(A) Bowker v. Burdekin, 11 M. & W. 128; Gudgen v. Besset, 26 L. J. (Q. B.) 36; 6 E. & B. (88 E. C. L. R.) 986; See Pym v. Campbell, 25 L. J. (Q. B.) 277; 6 E & B. (88 E. C. L. R.) 370; Watkins v. Nash, supra.
1 The point decided in Bowker v. Burdekin was, that a deed which was executed as an absolute conveyance, would not the less be an act of bankruptcy, because, on looking at the form of the deed, the conclusion might possibly be come to that the parties did not contemplate that the deed should operate as an act of bankruptcy unless the whole partnership effects were conveyed. The remark cited supra was said by Baron Parke to be the result of the cases of Johnson v. Baker, 4 B. & Al. (6 E. C. L. R.) 440; and Murray v. The Earl of Stair, 2 B. & C. (9 E. C. L. R.) 82, in both of which cases the instrument was not delivered to the party interested, but left with a stranger; and it must not be inferred, from the remark in Bowker v. Burdekin, that a deed purporting to be absolute, and delivered to a party, can by parol evidence be shown to have been conditional, as the contrary was expressly held in Ward v. Lewis, 4 Pick. 520, where an insolvent debtor having executed an assignment for the benefit of his creditors, which was found in the hands of the assignee it was held that the deed could not operate as an escrow, because the prima facie evidence was that it was delivered to the party, and that parol evidence was inadmissible to show that the assignment was meant to take effect only upon the assent of the majority of the creditors.-R.
A deed can never be delivered to the grantee himself as an escrow; if intended to operate as such, it must be delivered to a third person for him: Jordan v. Pollock, 14 Ga. 145; Firemen's Ins. Co. v. M'Millan, 29 Ala. 147; Thomason v. Dill, 30 Ala. 444; Duncan v. Pope, 47 Ga. 445. If delivered to the grantee, no matter what may be the form of the words accompanying the act, the delivery will be absolute: Dawson v. Hall, 2 Mich. 390; [Williams v. Higgins, 69 Ala. 517. This rule does not apply to deeds which upon their face import that something more is to be done besides delivery to make them competent and perfect contracts according to the intention of the parties: Wend-Linger v. Smith, 75 Va. 309.] It is not admissible to show, by parol evidence, that a deed was delivered to the party, on any condition contrary to the terms of the instrument: Worrall v. Munn, 1 Seld. 239; Warren v. Miller, 38 Me. 108; Black f. Shreve, 13 N. J. Eq. 455; Braman v. Bingham, 26 N. Y. 483. [But the manual delivery of a deed will not be regarded as a full and complete delivery when it is mutually understood at the time between grantor and grantee that such deed is not to become operative until some future event: Arthur v. Anderson, 9 So. Car. 234; Fraser v. Davie, 11 lb. 56.] An unconditional delivery of a deed to a third person for the use of the grantor, and the acceptance implied by bringing suit upon it, will constitute a sufficient delivery, and the acceptance may be presumed from the beneficial nature of the transaction: Tibbals v. Jacobs, 31 Conn. 428; Guard v. Bradley, 7 Ind. 600; Wall v. Wall, 30 Miss. 91; Stewart v. Weed, 11 Ind. 92; Jones v. Swayze, Such, then, being the essentials of a deed-writing1 on paper or parchment, sealing, and delivery-it is right to add, that, for the sake of convenience, deeds are divided into two classes, Deeds Poll, and Indentures, a Deed Poll being made by one party only, an Indenture between two or more parties (i). The names indeed of Deed Poll and Indenture were, as you probably all know, derived from the circumstance that the former was shaved or polled, as the old expression was, smooth at the edges, whereas the latter was cut or indented with teeth like a saw; for, in the very old times, when deeds were short, it was the custom to write both parts on the same skin of *parchment, and to write a word in large letters between the parts; and then, this word being cut through saw fashion, each party took away half of it; and if it became necessary to establish the identity of the instruments at a future time, they could do so by fitting them together, whereupon the word became legible (k). However, this, though the origin of the word indenture, has become a mere form; and though, as you are all aware, such instruments are still indented by nicking the edge of the parchmeut, not teethwise, but in an undulating line, that is a mere form, and might (as it was said) (/) be done in Court during the progress of a trial if it had been forgotten till then. Now, however, it is expressly enacted (m), " that a deed executed after the 1st day of October, 1845, purporting to be an indenture, shall have the effect of an indenture, although not actually indented."