(i) Co. Litt. 35 b.; Shepp. Touch. 50. Williams, Real Property, p. 156, 14th ed.
42 N. J. L. 279; Campbell v. Kuhn, 45 Mich. 512. To make the delivery of a deed effectual the grantor must part with all control. He cannot reserve to himself the power of recalling it; if he does so, the delivery is ineffectual: Cook v. Brown, 34 N. H. 460; Brown v. Austen, 35 Barb. 341. Any act or words, by which a grantor indicates an intention to deliver a deed is prima facie a delivery: Mallett v. Page, 8 Ind. 364; Dearmond v. Dearmond, 10 lb. 191; Stevens v. Hatch, 6 Minn. 64. If a bond intended as an escrow be delivered by the obligor to the obligee, on an agreement that the latter will hand it to a third person as depository, it will operate as an escrow: Brown v. Reynolds, 5 Sneed, 639. So the delivery of the deed to the grantee for examination is no delivery: Graves v. Dudley, 20 N. Y. 76. So to await execution by another party : Brackett v. Barney, 28 Ib. 333. For other cases on the subject of escrows see Chandler v. Chandler, 21 Ark. 95; Dyson v. Bradshaw, 23 Cal. 528; Berry v. Anderson, 22 Ind. 36; Loubat v. Kipp, 9 Fla. 60; Hathaway v. Payne, 34 N. Y. 92; Fitch v. Bunch, 30 Cal. 208; Resor v. Ohio Co, 17 Ohio St. 139; Abbott v. Alsdorf, 19 Mich. 157; Demesmey v. Gravelin, 56 111. 93; Stanton v. Miller, 65 Barb. 58; Roberts v. Mullenix, 10 Kan. 22.-s.
Even in the case of an escrow there must be an actual delivery-the grantor must part with control of the deed: Campbell v. Thomas, 42 Wis. 437. Although in the case of an escrow the estate does not pass until the second delivery, yet, sometimes, to prevent a failure of justice (as where the grantor dies before the second delivery), the deed will be held to relate back to the first delivery : Harkreader v. Clayton, 56 Miss. 383; Crooks v. Crooks, 34 Ohio St. 610. A third person who, according to the grantor's contract, has tendered a deed which the grantee has refused to accept, thenceforth holds the same as the depository of both parties, according to their respective rights; Adams v. Smilie, 50 Vt. 1. A fraudulent delivery by the depositary of a deed deposited as an escrow will not operate to pass the title even to a subsequent bona fide purchaser: Cotton v. Gregory, 10 Neb. 125; Clements v. Hood, 57 Ala. 459; Cressinger v. Dessenbury, 42 Mich. 580; Robbins v. Magee, 76 Ind. 381; White v. Core, 20 W. Va. 272.
1 Or, of course, printing: 2 Blackstone, *297; Leake, Digest of the Law of Contracts, 135.
There are one or two peculiarities of contracts made by deed, which as they apply to all contracts so made, this is the proper place to notice.
In the first place, a contract by deed requires no consideration to support it (n); or perhaps it might be more correct to say, as a general proposition, that the law conclusively presumes that it is made *upon a good and sufficient consideration (o).1 The importance of this arises from the strong line of distinction it creates between Contracts by Deed and Simple Contracts. For a simple contract, that is, a contract by words or by writing not under seal, requires, as I shall hereafter have occasion to explain more at length (p), a consideration to support it and give it validity. For instance, suppose a written promise in these words:-" I, A. B., promise C. D. that I will pay the debt he owes to E. F." This promise would be absolutely void unless it could be shown to have been made in consideration of something given or granted to A. B. for making it; for it would be a promise by him to undertake a liability without any consideration or recompense whatever; and, if he neglected to perform it, no action would lie against him, for the maxim, ex nudo pacto non oritur actio, would intervene for his protection. But, if to that very instrument, conceived in those very words, the additional solemnity of sealing and delivery were added, so as to make it a deed, it would become a good and binding covenant on which an action might be supported (q);
(k) Co. Litt. 229 a; 2 Bl. Comm. 295.
(1) Bac. Abr. Leases, E. 2, note. But see 54 Geo. III. c. 96.
(m) 8 & 9 Vict. c. 106, s. 5.
(n) Shubrick v. Salniond, 3 Burr. 1639.
(o) Cooch v. Goodman, 2 Q. B. (42 E. C. L. R. ) 590.
1 The proposition in italics was properly qualified by the lecturer in the remainder of the sentence. At common law no consideration was requisite to the validity of a deed, but since the introduction of conveyances taking effect by virtue of the Statute of Uses, courts of equity, and then courts of law, have held a consideration necessary to support such an instrument. It need not be expressed in the deed, but may be proved. But if expressed, the language of the instrument, so far as the legal effect of the deed is concerned, is conclusive (Preston on Abstracts, 14), and although in America, there is a numerous class of cases deciding that the consideration may, by parol, be shown to be greater or less, than is expressed (see infra, note 1, to page *21), yet on neither side of the Atlantic is such evidence admitted to defeat the legal effect of the deed as between the parties: Wilt v. Franklin, 1 Binn. 502; Hurn v. Soper, 6 Harr. & J. 276. Where the rights of creditors step in, the rule is different: Preston, supra; 1 Am. Lead. Cases, 1. This is merely mentioned, in order that conclusions might not be drawn from the text which the lecturer did not mean to convey, and on page *165, infra, he refers to the subject again. It may be here observed that there is another class of instruments which prima facie presume a consideration equally with specialties, viz.: negotiable instruments. See Mr. Smith's remarks, infra, *181.-r.
And this is on account of the greater formality and solemnity of such an instrument (r.)1 The reason of these different rules *cannot be better expressed than in the words of Plowden:-" There are two ways of making contracts or agreements for lands and chattels. The one is by words, which is the inferior method, the other is by writing (i. e., by Deed), which is the superior, and because words are oftentimes spoken by men unadvisedly and without deliberation, the law has provided that a contract by words shall not bind without consideration. As if I promise to give £20 to make your sale de novo, here you shall not have an action against me for the £20, as it is affirmed in 17 Edward IV., for it is a nude pact, et ex nudo pacto non oritur actio. And the reason is, because it is by words which pass from men lightly and inconsiderately; but where the agreement is by deed, there is more time for deliberation. For when a man passes a thing by deed, first there is the determination of the mind to do it, and upon that he causes it to be written, which is one part of deliberation, and afterwards he puts his seal to it, which is another part of deliberation, and lastly, be delivers the writing as bis deed, which is the consummation of his resolution; and by the delivery of the deed from him that makes it to him to whom it is made, he gives his assent to part with the thing contained in the deed to him to whom he delivers the deed, and this delivery is as a ceremony in law signifying fully his good will that the thing in the deed should pass from him to the other. So that there is great deliberation used in the making *of deeds, for which reason they are received as a lien final to the party, and are adjudged to bind the party without examining upon what cause or consideration they were made. And, therefore, in the case put in 17 Edward IV., put it thus, that I by deed promise to give you £20 to make your sale de novo; here you shall have an action of debt upon this deed, and the consideration is not examinable, for in the deed there is a sufficient consideration, viz., the will of the party that made the deed. And so where a carpenter, by parol, without writing undertook to build a new house, and for not doing it the party in 11 Henry IV. brought an action of covenant against the carpenter. There it does not appear that he should have anything for building the house, and it was adjudged the plaintiff should take nothing by the writ. But if it had been by speciality it would have been otherwise. So that where it is by deed, the cause or consideration is not in-quirable, nor is it to be weighed, but the party ought only to answer to the deed, and if he confesses it to be his deed he shall be bound, for every deed imports in itself a consideration, viz., the will of him that made it, and, therefore, where the agreement is by deed, it shall never be called a nudum, pactum. And in an action of debt upon an obligation, the consideration upon which the party made the deed is not to be inquired, for it is sufficient to say that it was his will to make the *deed " (s). Thus, although a promise to make a woman an allowance for her maintenance in consideration of past seduction is invalid, past seduction being, for reasons given in another place (t), no consideration in law; yet, inasmuch as an instrument under seal is good without any consideration, a bond for maintenance founded on previous seduction is good (u)1