* * * "And a deed may be delivered by the party himself that doth make it, or by any other by his appointment or authority, precedent, or assent, or agreement subsequent, for omnis ratihabitio mandata equiparatur. And so also a deed may be delivered to the party himself to whom it is made, or to any other by sufficient authority from him; or it may be delivered to any stranger for and in the behalf and to the use of him to whom it is made, without authority. * * *
"The delivery of a deed as an escrow is said to be when one doth make and seal a deed and deliver it unto a stranger, until certain conditions be performed, and then to be delivered to him to whom the deed is made, to take effect as his deed. But in this case two conditions must be heeded: 1. That the form of words used in the delivery of a deed in this manner be apt and proper. 2. That the deed be delivered to one that is a stranger to it, and not to the party himself to whom it is made." * * *
'But when the conditions are performed and the deed is delivered over, then the deed shall take as much effect as if it were delivered immediately to the party to whom it is made, and no act of God or man can hinder or prevent this effect then, if the party that doth make it be not at the time of making thereof disabled to make it. He, therefore, that is intrusted with the keeping and delivery of such a writing, ought not to deliver it before the conditions be per formed; and when the conditions be performed he ought not to keep it, but deliver it to the party. For it may be made a question whether the deed be perfect before he hath delivered it over to the party according to the authority given him. Howbeit it seems that the delivery is good, for it is said in this case that if either party to the deed die before the conditions be performed, and the conditions be after performed, that the deed is good; for there was traditio inchoata in the lifetime of the parties; and postea consummata existens by the performance of the conditions it taketh its effect by the first delivery, without any new or second delivery; and the second delivery is but the execution and consummation of the first delivery." - Ed.
c. Covenants in conveyances.1
(1.) Covenants for Title. (a.) Covenant of seisin.
1 New York, 564. - 1848. [Reported herein at p. 286.]
5 Connecticut, 497. - 1825.
Hosmer, Ch. J. - The case made by this motion presents two questions for determination.
The first is, whether the plaintiff, claiming to be the assignee of the covenant of seisin can maintain an action on that covenant.
This covenant, from its nature, is broken instantaneously on the delivery of the deed, or it is never broken. It runs in the words of the present tense, and asserts, that the grantor is well seised. Now, if he is well seised according to his covenant, the agreement is fulfilled; and if he is not well seised, the covenant is false, and immediately broken. It follows from this, that it is a personal covenant, which, most clearly, never runs with the land, and that the grantee, in whose time the breach existed, can alone sue upon it; for, after a breach the cause of action can never be assigned. It would be the assignment of a chose in action, which the common law will not permit. That the covenant of seisin, if false, is broken as soon as it is made, appears from Shep. Touch. 170; from Bick-ford v. Page, 2 Mass. Rep. 460; from Marston v. Hobbs, 2 Mass. Rep. 437; from Bennett v. Irwin, 3 Johns. Rep. 365: from Abbotts. Allen, 14 Johns. Rep. 253; from Greenby et a/, v. Wilcocks, 2 Johns. Rep. 1; from Pollard et al. v. Dwight et al., 4 Cranch. 430; from 1 Swift's Dig. 370; and from Mitchell v. Hasen, 4 Conn. Rep. 495. From its nature, it does not run with the land, as none but real covenants do; and these are always suspended on some act posterior to the delivery of the deed. Hence, as I have said before, having been broken, the covenant has become a chose in action, and therefore cannot be assigned. 1 Swift's Dig. 370. In Bickford v. Page, 2 M Rep, 455, it was said by the court: " This covenant being broken before the release was, at that time, a mere chose in action, and unassignable." The court, in the case of Greenby et at. v. Wil-cocks, 2 Johns. Rep. 1, determined that the assignee of a covenant of seisin could not recover. The opinion was delivered by Spencer, J., in which he says: "Choses in action are incapable of assignment at the common law; and what distinguishes these covenants, broken the instant they were made, from an ordinary chose in action? The covenants, it is true, are such as run with the land; but here the substratum fails, for there was no land whereof the defendant was seised, and of a consequence, none that he could alien; the covenants are, therefore, naked ones, uncoupled with a right to the soil." The same point was adjudged as far back as the reign of Queen Elizabeth, in Lewes v. Ridge, Cro. Eliz. 863; and the case, so far as I can find, has never been overruled. The principle settled in that case, was this; that an assignee shall not have an action upon a breach of covenant before his own time. The same principle was recognized in Marston v. Hobbs, 2 Mass. Rep. 439; in the determination of which case, it was said by Parsons, Ch. J., when delivering the opinion of the court; that "no estate passed, to which these covenants (i. e., of seisin and right to convey) could be annexed, because in fact broken before any assignment could be made, they were choses in action, and not assignable." In Com. Dig. tit. Covenant, B. 3, it is asserted, that "covenant does not lie by an assignee, for a breach done before his time." It cannot run with the land; for nothing having been conveyed, what land is there for it to run with? To the same effect is Lucy v. Levington, 2 Lev. 26, s. c. 1 Vent. 175, in which it was decided, that for a breach of the covenant of quiet enjoyment in the testator's time, the executor was authorized to recover; and of his opinion was that eminent judge Sir Matthew Hale. Similar doctrine is to be found in the Digest of Baron Comyns, tit. Covenant, B. 1.