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 .
28. Ante, Sec. 461, notes 53-58.
29. Murray v. Stair, 2 B. & C. 82; Bowker v. Burdekin, 11 M. & W. 128; Seeley v. Curts, (Ala.), 61 So. 807; In re Cornelius' Estate, 151 Cal. 550, 91 Pac. 329; White v. Bailey, 14 Conn. 271; Shults v. Shults, 159 111. 654, 50 Am. St. Rep. 188, 43
N. E. 800; Jackson v. Sheldon. 22 Me. 569; Andrews v. Farnhani. 29 Minn. 246, 13 N. W. 161; Clark v. Gilford, 10 Wend. (N. Y.) 310; Gaston v. City of Portland. 16 Ore. 255, 19 Pac. 127; Bronx Inv. Co. v. National Hank of Commerce of Seattle, 47 Wash. 566, 92 Pac. 380.
30. Ante, Sec. 461, note 40.
31-33. Consequently there is no conditional delivery, or any delivery whatsoever, if the grantor hands the instrument to a third person with a statement that it is not to become operative until he indicates a desire to that effect. Masters v. Clark, 89 Ark. 191, 116 S. W. 186; Miller v. Sears, 91 Cal. 282, 25 Am. St. Rep. 176; Loubat v. Kipp, 9 Fla. 60; James v. Vanderhey-den, 1 Paige (N. Y.) 385. Or if he hands it to a third person merely for safe keeping. Dudley v. Dodley, 126 Ark. 182, 189 S. W. 838; Shelinsky v. Foster, 87
Conn. 90, 87 Atl. 35; or for other porposes, so long as he retains the right to regard it as nullity. Miller v. Sears, 91 Cal. 282, 25 Am. St. Rep. 176, 27 Pac. 589; Holland v. Mccarty, 173 Cal. 597, 160 Pac. 1069; Hoig v. Adrian College, 83 111. 267; Kirby v. Hulette, 174 Ky. 27, 192 S. W. 63.
34. Soward v. Moss, 59 Neb. 71, 80 N. W. 268; Ruggles v. Lawson, 13 Johns. (N. Y.) 285, 7 Am. Dec. 375; Wilkins v. Somerville, 80 Vt. 48, 11 L. R. A. (N. S.) 1183, 130 Am. St. Rep. 906. 66 Atl. 893.
The satisfaction of the condition,35 and there is no reason why he should be allowed to retain a right of control by an express statement to that effect while making delivery.36 A delivery which the grantor can, at his option, treat as not a delivery, is incomprehensible, and in so far as the conveyance may still be subject to the grantor's control, in the sense that he may treat it as a legal nullity, it must be considered that there has been no delivery, conditional or unconditional, and that he has merely handed the instrument to the depository to hold as his agent.
- "Second delivery." One notion as to delivery in escrow which, though erroneous on principle, and generally repudiated,37 receives occasional expression,38 is that such a delivery does not become operative by reason of the satisfaction of the condition, unless this is followed by a manual transfer of the instrument by its custodian to the grantee named therein, a "second delivery" as it is sometimes called. It might, of course, happen that such a transfer is a part of the condition on which the delivery is made, but that it is not ordinarily the grantor's intention that the operation of the instrument shall depend on the custodian's caprice or convenience in handing or not handing the instrument to the grantee is sufficiently obvious. The fact that, as is frequently the case, the grantor requests or directs the custodian to hand the instrument to the grantee upon the occurrence of the event specified, or even that the grantor is under the mistaken impression that such a manual transfer is necessary in order to render the instrument operative, is no reason for inferring an intention that the instrument shall not be operative unless such a transfer is made. The necessity of such a physical transfer of the instrument by its custodian cannot be regarded as involved in the occasional decisions that the grantee may, upon satisfaction of the condition, recover possession of the instrument from the custodian by suit.39 The grantee is entitled to its possession because it is a muniment of his title, and not because its possession by him is necessary to render it legally operative. This notion of the necessity of a second delivery is evidently based on the primitive idea, before referred to, which still so frequently emerges, that the operation of a deed is dependent on the physical transfer of the instrument to the grantee or obligee.
35. Tharaldson v. Everts, 87 Minn. 168, 91 N. W. 467; Seibel v. Higham, 216 Mo. 121, 129 Am. St. Rep. 502, 115 S. W. 987; James v. Vanderheyden, 1 Paige (N. Y.) 385; Stanton v. Miller, 58 N. Y. 192. But see Brown v. Allbright 110 Ark. 394, 161 S. W. 1036, for a dictum contra.
36. That there is no delivery-whatsoever if such right of revocation is retained, see Moore v. Moye, 122 Ark. 548, 184 S. W. 63; Roe v. Lovick, 8 Ired. Eq. (N. C.) 88; Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592; and cases in note 31-33 supra. See also cases to the same effect in connection with a delivery to take effect on the grantor's death, post, note 93. That there is no delivery in so far as a right of control still exists in the grantor see ante. Sec. 461, note 60.
37. White Star Line Steam-bout Co. v. Moragne, 9l Ala. 610,
8 So. 867; Cannon v. Handley, 72 Cal. 133, 13 Pac. 315; Couch v. Meeker, 2 Conn. 302; Davis v. Clark, 58 Kan. 100, 48 Pac. 563; Francis v. Francis, 143 Mich. 300, 106 N. W. 864; Naylor v. Stene, 96 Minn. 57, 104 N. W. 685; State Bank v. Evans, 15 N. J. L. 155, 28 Am. Dec. 400; Craddock v. Barnes, 142 N. C. 89, 54 S. E. 1003; Shirley v. Ayres, 14 Ohio St. 307; Ketter-son v. Inscho, 55 Tex. Civ. App. 150, 118 S. W. 626; Prutsman v. Baker, 30 Wis. 644.
38. See Fuller v. Hollis. 57 Ala. 435; Fitch v. Bunch, 30 Cal. 208, 212; Foster v. Mansfield, 3 Mete. (Mass.) 412; Taft v. Taft, 59 Mich. 185, 60 Am. Rep. 291; Lindley v. Groff, 37 Minn. 338, 34 N. W. 26; Stephens v. Kim-hart, 72 Pa. St. 434; 4 Kent's Comm. 454; 3 Washburn, Real Prop., Sec. 2179; 16; Cyclopedia Law & Proc. 561 n 3.
39. Tombler v. Sumpter, 97 Ark. 480, 134 S. W. 967; Hardin v. Neal Loan & Banking Co., 125 Ga. 820, 54 S. E. 755; Guild v. Althouse, 71 Kan. 604, 81 Pac. 172; Stanton v. Miller, 58 N. Y. 192, 202, 65 Barb. 58; Ba\im's
Appeal, 113 Pa. St. 58, 65, 4 Atl. 461; Gammon v. Bunnell, 22 Utah, 421, 64 Pac. 958 (semble); Bronx Inv. Co. v. National Bank of Commerce, 47 Wash. 566, 92 Pac. 380; Schmidt v. Deegan, 69 Wis. 300, 34 N. W. 83.