A deed may be delivered in escrow; that is, into the keeping of a third person to be delivered to the grantee on the performance of some condition.265 When there is a delivery in escrow, and the condition is performed,266 the deed becomes effectual from the time of the first delivery, unless intervening rights have attached.267 There can be no delivery in escrow to the grantee himself,268 nor to his agent or attorney, unless the agent or attorney agrees to hold in that way;269 otherwise, the deed would take effect as if no condition had been attached.270 The deed, however, may be passed through the grantee to another person to hold in escrow.271 A deed delivered in escrow is of no effect until the condition accompanying is performed, even though it is actually delivered to the grantee without the performance of the condition through the wrongful act of the depositary.272 For a valid delivery in escrow there must be no power in the grantor to recall the deed.273 The death of the grantor before the second delivery does not prevent the deed becoming effectual by the performance of the condition and a second delivery.274
44 N. H. 264; Johnson v. Farley, 45 N. H. 505; Hibberd v. Smith, 67 Cal. 547, 4 Pac. 473, and 8 Pac. 46. But see Wilt v. Franklin, 1 Bin. (Pa.) 502; Merrills v.swift, 18 Conn. 257. And cf. Moore v. Hazleton, 9 Allen (Mass.) 102 . 257 Tunison v. Chamblin, 88 111. 379; Tuttle v. Turner, 28 Tex. 759.
258 Church v. Gilman, 15 Wend. (N. Y.) 656; Jones v. Swayze, 42 K T. Law, 279; Stewart v. Weed, 11 Ind. 92.
259 Jackson v. Phipps, 12 Johns. (N. Y.) 418; Younge v. Guilbeau, 3 Wall. 636; Fisher v. Hall, 41 N. Y. 416. But see Mitchell v. Ryan, 3 Ohio St. 377: Myrover v. French, 73 N. C. 609.
260 Hulick v. Scovil, 4 Gilman (111.) 159; Stewart v. Weed, 11 Ind. 92.
261 Johnson v. Stagg, 2 Johns. (N. Y.) 520. But the application of this doctrine will not be permitted to work an injury to third persons. Jackson v. Bard, 4 Johns. (N. Y.) 230.
262 Co well v. Daggett, 97 Mass. 434; Bryan v. Wash, 7 111. 557. And see Douglas v. West, 140 111. 455, 31 N. E. 403.
263 Warren v. Tobey, 32 Mich. 45; Souverbye v. Arden, 1 Johns. Ch. (N. Y.) 240; Albert v. Burbank, 25 N. J. Eq. 404.
264 Roberts v. Jackson, 1 Wend. (N. Y.) 478; Earle's Adm'rs v. Earle, 20 N. J. Law, 347.
265 Arnold v. Patrick, 6 Paige (N. Y.) 310; Johnson v. Branch, 11 Humph. (Tenn.) 521; Loubat v. Kipp, 9 Fla. 60. And see Blight v. Schenck. 10 Pa. St. 285; Wallace v. Butts (Tex. Civ. App.) 31 S. W. 687.
267. Acknowledgment-a deed must be acknowledged by the grantor to be his voluntary act, before some officer designated by the statute,
(a) To entitle it to record.
(b) To give it validity, in some states.
To make an acknowledgment the grantor goes before an officer, designated by statute, and declares that the deed is a genuine one,
266 See Johnson v. Baker, 4 Barn. & Ald. 440.
267 Hall v. Harris, 5 Ired. Eq. (N. G.) 303; Price v. Railroad Co., 34 111. 13; Foster v. Mansfield, 3 Mete. (Mass.) 414; Ruggles v. Lttwson, 13 Johns. (N. Y.) 285; Stephens v. Rinehart, 72 Pa. St. 434; Lindley v. Groff, 37 Minn. 338, 34 N. W. 26.
268 Whyddon's Case, Cro. Eliz. 520; Williams v. Green, Id. 884. See Degory v. Roe, 1 Leon. 152. Contra, Hawksland v. Gatchel, Cro. Eliz. 835.
269 Cincinnati, W. & Z. R. Co. v. Hut, 13 Ohio St. 235; Southern Life Ins. & Trust Co. v. Cole, 4 Fla. 359; Watkins v. Nash, L. R. 20 Eq. 262.
270 Stevenson v. Crapncll, 114 111. 19, 28 N. E. 379; Miller v. Fletcher, 27 Grat. 403.
271 Gilbert v. Insurance Co., 23 Wend. (N. Y.) 43.
272 Everts v. Agnes, 6 Wis. 453; Illinois Cent. R. Co. v. Mccullough, 59 111. 170; Smith v. Bank, 32 Vt. 341. But see Blight v. Schenck, 10 Pa. St. 285; Wallace v. Harris, 32 Mich. 380.
273 James v. Vanderheyden, 1 Paige (N. Y.) 385. 274 Lindley v. Groff, 37 Minn. 338, 34 N. W. 26.
§ 267) and his voluntary act. To this the officer makes a certificate. Provisions for acknowledgment are purely statutory, and do not exist at common law. In some states acknowledgment is required, in the absence of witnesses to the deed, to give it any validity, while in others acknowledgment is only for the purpose of admitting the deed to record.275 In many states it is provided that a deed properly acknowledged may be read in evidence without further proof of the genuineness of its execution,276 aud this is true even though the deed has not been recorded.277 Other courts hold to the contrary, however, but admit the unacknowledged deed as evidence against the grantor and his heirs.278 In states where an unacknowledged deed cannot be recorded, if such an instrument is actually spread upon the records, it does not constitute notice,279 though it may be actual notice to one who has examined the record.280 No one has power to acknowledge a deed except the grantor, or one to whom he has given a power of attorney.281 When husband and wife have joined in a conveyance of the wife's land, both must acknowledge the deed; and so when a wife joins in her husband's deed.282 To release her dower she must acknowledge the deed, and in most states this acknowledgment must be separate and apart from the husband.283 An acknowledgment may be made at any time before the deed is placed on record or used in evi
275 1 Stlm. Am. St. Law, art. 157. See Alt v. Stoker, 127 Mo. 466, 30 S. W. 132.
276 1 stini. Am. St. Law, § 1572.
277 Keichline v. Keichline, 54 Pa. St 75.
278 Jackson v. Sbepard, 2 Johns. (N. Y.) 77; Brown v. Manter, 22 N. H. 468; Gibbs v. Swift, 12 Cush. (Mass.) 393. In some states the grantor can be compelled to acknowledge a deed executed and delivered. Sullivan v. Chambers, 18 R. I. 799, 31 Atl. 167.
279 Blood v. Blood, 23 Pick. (Mass.) 80; Kerns v. Swope, 2 Watts (Pa.) 75;9 Dussaume v. Burnett, 5 Iowa, 95. Contra, Reed v. Kemp, 16 111. 445; Simpson v. Mundee, 3 Kan. 181.