1The transfer of land carries with it all easements appurtenant thereto. Kuhl-man v. Hecht, supra, p. 819. - Ed.
Coke, J., in
28 Texas, 759. - 1866.
A deed takes effect only from the date of its delivery, which may be either actual or constructive. It is essential to the operative force and validity of a deed, if not actually delivered to the grantee or his agent authorized to receive it, to prove notice to him of its execution, and such additional circumstances as will afford a reasonable presumption of his acceptance of it. The presumption that a party will accept a deed because it is beneficial to him, it is said, will never be carried so far as to consider him as having accepted it. 4 Kent Com. § 454; Hulick v. Scovill, 4 Gilm. 159. But possession of a deed by the grantee raises a presumption of its due delivery. Chandler v. Temple, 4 Cush. 285; Trust Co. v. Cole, 4 Fla. 359. This presumption may be rebutted by proof to the contrary.
The Chancellor in
6. Paige's Chancery, 310. - 1837.
From the facts stated in the answer of Arnold, in connection with those stated in the further answer as having been derived from the information of J. Ricketson subsequent to the assignment of the mortgage, which under the Stipulation in this ease must be taken to be correct, I am inclined to think that there was such a delivery of the deed of August, 1829, as was sufficient at law to pass the legal title to the premises in question; subject, however, in equity, to the payment of the unpaid purchase money. It is evident from the facts stated that it must have been the intention of both parties that if the purchase money was paid the deed should take effect without any new delivery; as the grantee had, under the agreement of 1825 an unquestionable right to a conveyance of the premises upon payment of the amount due. Had this deed been intrusted to the clerk merely as an escrow to be delivered to George upon condition that the purchase money was actually paid to the grantor within a certain prescribed time, but not otherwise, the legal title would still have remained in the grantor, although the deed might have gotten into the hands of the grantee, without a performance of the condition upon which it was to take effect. That does not appear to have been the case here; but the parties acted upon the erroneous supposition that the deed might be delivered to the grantee himself, upon the condition that it should not be proved and recorded if the purchase money was not paid, and that the legal title would not pass by such a delivery. The legal rule, however, is, as was insisted upon by the counsel for Patrick, that a deed or any other sealed instrument cannot be delivered to the grantee or obligee himself as an escrow, to take effect upon a condition not appearing upon the face of such deed or instrument; but that if so delivered it becomes absolute at law. Coke Litt. 36, a; Touchstone, 59; Thoroughgood's Case, 9 Coke's Rep. 137, a.
34 Illinois, 13. - 1864.
Breese, J. - The principal point, however, which is made in the case is as to the right of the plaintiffs below to recover at all for use and occupation. Of this we think there can be no doubt. By express agreement, when the plaintiffs purchased the lots of the former owner, under whom the defendant held as tenant by the year, it was agreed and understood, if the plaintiffs consummated the trade by delivering the bonds and mortgages by the fall of 1860, the deeds they had executed on and prior to the first day of May, 1860, and placed in the hands of the attorney and solicitor of the plaintiffs, were to take effect and be in force on the first day of May, 1860. The defendant insists that the delivery of these deeds to the solicitor of the company, was, in effect, the same as a delivery to any third person not connected with the company; that they were delivered to a stranger, and were, therefore, escrows; and being so, the title to the lots remained with the grantors, subject to be transferred on the delivery of the bonds and mortgages. It is generally true, and is the old doctrine of the books, that if a deed is delivered to a stranger to be delivered to the grantee, on the performance by him of certain conditions, and they are fully performed, and the deed delivered, that the deed takes effect from the second delivery, and to be considered the deed of the party from that time.
This rule, it is said, does not apply where justice requires a resort to fiction. 4 Kent's Com. 454.
The instances usually put are when the grantor, after the deposit of the deed as an escrow, dies, or becomes insane, or, if a feme sole, marries before the grantee has performed the conditions. In such cases the law will make the second delivery relate back to the time of the deposit of the escrow. 1 Shep. Touch. 123. What effect the agreement of the parties should have upon the time of the delivery is not there discussed, nor is it said these are the only instances in which there shall be this relation back.
The case of Lessee of Shirley v. Ayres, 14 Ohio, 307, was an ejectment, where it was held a deed delivered as an escrow should take effect on its first delivery, on the performance of the condition, if it was necessary to protect the grantee or those claiming under him against intervening rights.
The case of Beekman v. Frost, 18 Johns. 543, in the Court of Errors, holds the same doctrine. A very strong case is to be found in 9 Mass. 307, Hatch et al. v. Hatch et al., where the court held that a writing delivered to a stranger for the use and benefit of the grantee, to have effect after a certain event, or the performance of some condition, may be delivered either as a deed or as an escrow. The distinction, however, the court say, being almost entirely nominal when we consider the rules of decision which have been resorted to for the purpose of effectuating the intentions of the grantor or obligor in some cases of necessity. If delivered as an escrow, and not in name as a deed, it will, nevertheless, be regarded and construed as a deed from the first delivery, as soon as the event happens, or the consideration is performed upon which the effect had been suspended, if this construction should be then necessary in furtherance of the lawful intentions of the parties.