This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
20. See 4 Wigmore, Evidence, Sec.Sec. 2405, 2408. This writer remarks in reference to the case of Hawksland v. Gatchel Cro. Eliz. 835, which clearly decided that delivery was conditional, if so intended, although the instrument was handed to the obligee, handed to the grantee or obligee without effecting any delivery whatsoever,21 and it is difficult to see why it cannot be so handed without effecting more than a conditional delivery. So far as the danger of misleading an innocent third person is concerned, the danger is as great when there is no delivery as when the delivery is conditional only. The view referred to has, by a number of courts, been repudiated in connection with bills and notes, with the effect of upholding a conditional delivery thereof in spite of a manual transfer to the payee,22 and the same considerations in favor of its repudiation would seem to apply in the case of deeds of conveyance. A tendency to break in upon such a rule is indicated by decisions that it does not apply if the instrument shows on its face an intention that others than those who have executed it shall join in its execution before it shall become operative,23 as well as by decisions that the grantor can hand the instrument to the grantee, to be in turn handed by the latter to a third person to hold it in escrow, without thereby rendering it immediately operative.24
Occasional decisions to the effect that an instrument cannot be regarded as conditionally delivered if it is handed to the grantee's agent25 are based upon the
"the authority and vogue of Coke's and Sheppard's writings obscured and suppressed prematurely this progressive conception."
21. Ante, Sec. 461, note 47.
22. 1 Daniel, Negotiable Instruments (6th ed.), Sec. 68a; Norton, Bills & Notes (3rd ed.) 71.
23. Shelby v. Tardy, 84 Ala. 327, 4 So. 276; Ward v. Churn, 18 Gratt. (Va.) 80, 98 Am. Dec. 749; Wedlinger v. Smith, 75 Va. 309, 40 Am. Rep. 727.
24. Cherry v. Herring, 83 Ala. 458, 3 So. 667; Fairbanks v. Met-calf, 8 Mass. 230; Gilbert v.
North American Fire Ins. Co., 23 Wend. (N. Y.) 43, 35 Am. Dec. 543; Brown v. Reynolds, 5 Sneed. (Tenn.) 639. But see Braman v. Bingham, 26 N. Y. 491, for a dictum contra.
25. Duncan v. Pope, 47 Ga. 445; Stewart v. Anderson, 59 Ind. 375; Hubbard v. Greeley, 84 Me. 340, 17 L. R. A. 511; Wier v. Batdorf, 24 Neb. 83, 38 N. W. 22; Worrall v. Munn, 6 X. Y. 229, 55 Am. Dec. 330; Ordinary v. Thatcher, 41 N. J. L. 403 32 Am. Rep. 225; Bond v. Wilson. 129 N. C. 325, 40 S. E. L79.
Assumption that such a manual transfer to the grantee's agent is in effect a transfer to the grantee himself. Such an assumption is justified, however, only when the transfer is to the grantee's agent as such; that is, the mere fact that for other purposes one is the grantee's agent does not render him such agent for the purpose of holding possession of the instrument, and it has accordingly been decided in a number of cases that there was a valid conditional delivery although the person to whom the instrument was handed, to hold until satisfaction of the condition, was for some purposes the agent of the grantee.26
Occasional statements to the effect that an instrument which has been handed to the grantor's agent cannot be regarded as having been delivered conditionally27 appear to be open to question. They are, no doubt, an outgrowth of the view that there can be no conditional delivery if the grantor retains possession of the instrument, it being considered that possession by the grantor's agent is in effect possession by the grantor himself. Conceding that there can be no conditional delivery so long as the grantor retains possession of the instrument, a view which, as we have seen, appears somewhat difficult to sustain on principle, it does not seem that there is the equivalent of such a retention of possession when the grantor hands the instrument to another, merely because such other is his agent. That is to say, the fact that the person to whom he hands the. instrument is the agent of the grantor for other pur26. Ashford v. Prewitt 102 Ala. 264, 48 Am. St. Rep. 37; Dixon v. Bristol Sav. Bank, 102 Ga. 461, 66 Am. St. Rep. 193; Price v. Home Ins. Co., 54 Mo. App. 119; Cincinnati. R. Co. v. Hiff, 13 Ohio St. 235; Fertig v. B'ucher, 3 Pa. St. 308; Merchants' Ins. Co. of New York v. Nowlin, (Tex. Civ. App.), 56 S. W. 198; Blair v. Security Bank, 103 Va.
762, 50 S. E. 262; Watkins v. Nash, L. R., 20 Eq. 262.
27. Day v. Lacasse, 85 Me. 242, 27 Atl. 124; Van Valken-burg v. Allen, 111 Minn. 333, 137 Am. St. Rep. 561, 126 N. W. 1092; Wier v. Batdorf, 24 Neb. 83, 38 N. W. 22. Contra. Smith v. Smith, 173 Cal. 725, 161 Pac. 495; Mclaughlin v. Wheeler, 1 S. D. 497, 47 N. W. 816.
Poses does not show that he is his agent as regards the custody of the document. The practical inconvenience of the view that there is in such case no conditional delivery would seem to be considerable. Suit-pose, for instance, the owner of land, having sold it, signs and seals a conveyance and hands it to his legal adviser, or other agent, with directions to hand it to (he purchaser upon payment of the purchase money. If this is regarded as an absolute delivery by the vendor, the legal title passes, contrary to his intention, even before the payment of the purchase money, while if it is not regarded as a delivery, the conveyance would not pass title to the purchaser even on his payment of the price and the physical transfer of the instrument to him by the agent, unless we adopt the view, which is believed to be unsound on principle,28 that an agent acting under oral authority may make delivery. The proper view, it is submitted, of a transaction of the character referred to, is that a conditional delivery takes place when the instrument is handed to the agent, the condition being the payment of the purchase money, upon the satisfaction of which condition the ownership passes.
- Retention of control. The question whether, when the instrument has been handed by the grantor to a third person, it is to be regarded as having been conditionally delivered, is to be determined with reference to the language used by him, construed in the light of the surrounding circumstances, as showing the grantor's intention.29 That is, as absolute delivery is a question of the grantor's intention,30 so conditional delivery is a question of his intention. Such a manual transfer of the instrument to a third person is compatible with either an absolute delivery, a conditional delivery, or no delivery whatsoever; that is, the grantor may hand the instrument to a third person with the intention that it become immediately operative, that it become operative in case a certain condition is satisfied, or with no intention as to its becoming operative. A conditional delivery differs from an absolute delivery merely in the fact that it is subject to a condition, and it is in its nature as final as an absolute delivery.31-33 For this reason it is difficult to yield our assent to occasional decisions and dicta34 that the grantor may, when handing the instrument to third person by way of conditional delivery, retain a right of revocation, so called, by an express statement that the instrument is not to become operative even on satisfaction of the condition if he, the grantor, in the meantime indicates a desire to the contrary. It is recognized that, after making a conditional delivery without expressly retaining any such right of control, the grantor cannot prevent the instrument from becoming operative upon