The case of Hall v. Harris, 5 Ired. Eq. R. 303, is to the same effect
The question in this case was, whether a deed took effect on the second day of March, the date of its execution, or on the tenth, the day on which full payment for the land was paid. The trade was made on the second of March, on which day part of the price was paid, and the vendor was to make a deed and hand it to one Morgan, to be by him handed to the vendee when he paid the price. On that day the vendor made the deed and handed it to Morgan, Afterwards, on the tenth of March, the vendee paid Morgan the balance due and received the deed. The purpose, the courts say, for which the deed was delivered to a third party instead of being delivered directly to the plaintiff, was merely to secure the payment of the price. When that was paid the plaintiff had a right to the deed. The purpose for which it was put into the hands of a third person being accomplished, the plaintiff then held the deed in the same manner he would have held it if it had been delivered to him in the first instance. This was the intention, and we can see no good reason why the parties should not be allowed to effect their end in this way. Though the plaintiff might have avoided the purchase, his rights cannot be affected by that fact.
The court remarks if the vendor had died after the delivery to the third person, and before the payment, the vendee, upon making the payment, would have been entitled to the deed, and it must have taken effect from the first delivery, or it could not have taken effect at all. The intention was, it should be the deed of the vendor from the time it was delivered to the third person, provided the condition was complied with. If this intention is bona fide, and not a contrivance to interfere with the right of creditors, the deed must be allowed to take effect. The court conclude by saying, we are satisfied from principle and from a consideration of the authorities, that when a paper is signed and sealed and handed to a third person to be handed to another, upon a condition which is afterwards complied with, the paper becomes a deed by the act of parting with the possession, and takes effect presently, without reference to the precise words used, unless it clearly appears to be the intention that it should not then become a deed.
In the case before us the proof was that the deeds were delivered, as deeds, to the solicitor of the company, with the understanding, when the bonds and mortgages of the railroad company to be given in payment of the lots, and which had to be executed in a distant state, were returned from there, the deeds were to take effect as of May 1, 1860; and if the bonds were not returned, the deeds were not to take effect at all; that the bonds were not returned until the fall of 1860, and that he, the witness, should not have delivered or recorded the deeds until the bonds came; that the bonds and mortgages are dated and bear interest from May I, 1860, and interest has been paid on them from that date.
It is a case quite like the case of Hatch v. Hatch, decided by the Supreme Court of Massachusetts, and the case in Iredell decided by the Supreme Court of North Carolina.
In all such cases the intention of the parties is to be considered, and it seems quite manifest these parties intended those deeds should have effect from the day of their execution, if the conditions were performed; and they were fully performed.
But were these deeds delivered to a stranger, so as to constitute an escrow? The proof is, they were delivered to the solicitor of the company. Now, since a corporation can only act through its officers and agents, a delivery of a deed to one of its officers would be a delivery to the company, and therefore would take effect immediately. Foley v. Cogwill, 5 Blackf. 20; Worrall v. Munn et al., 1 Seld. N. Y. 229.
The case cited by appellant from 4 Fla. 359, Southern Life Ins. and Trust Co. v. Cole, holds, that a delivery to an officer or servant of a corporation, is delivery to the corporation, with the addition that such delivery is for the use and benefit of the corporation, and with an intent to pass an absolute property or interest in the deed delivered. That court did not think there was such a personal identity between the corporation and its officers, that a deed may not be placed in the hands of the latter as an escrow until the performance of some condition. The court, however, in that case refused to permit the deed to take effect in favor of the company from its date, because it would do wrong and injustice to the rights of other parties.
The question of intention in the case before us was left to the jury, and they have found the deeds, by agreement of the parties, were to take effect on the first day of May, 1860, and it is not pretended any rights or interests have intervened to be injuriously affected by such an agreement. Justice is done by it, because the plaintiffs have paid the interest on these bonds and mortgages from the first day of May, 1860, at which date, all claim and interest of their vendors ceased, and so ceasing the plaintiffs became entitled to the rents and profits of the tenancy then existing and theretofore created. A suit brought by these vendors, for the rent of these premises, could not, under the facts proved, be maintained. They sold the premises on a condition which has been fully performed with an express agreement, when performed, their deed should take effect on the first day of May. They could not afterwards retract this, nor could any other person, except, perhaps, creditors, gainsay the validity of such an agreement in the absence of fraud. We are inclined to think the delivery of these deeds, under the circumstances, was absolute in the first instance.1
1The following quotations appear in the argument of counsel at p. 28 of the official report:
"The fifth thing required in every well-made deed is, that there be a delivery of it. And for this it must be known that the delivery is either actual, i. e., by doing something and saying nothing or else verbal i. e., by saying something or doing nothing, or it may be by both; and either of these may make a good delivery and a perfect deed.