Closely connected in its nature and origin with this notion of the necessity of a second delivery is the con-tention, occasionally made, that if the custodian of the instrument hands it to the grantee before the satisfaction of the condition, the instrument becomes immediately operative. This contention has met with no favor, there being a considerable number of decisions that an instrument delivered in escrow does not thus he-come immediately operative by reason of such a transfer to the grantee of the possession of the instrument.40 And this has been held to be so even as against a subsequent innocent purchaser for value from the grantee,41 unless the grantor, in giving the grantee possession of the land in addition to relinquishing control of the instrument, was guilty of such negligence as to be precluded from asserting that the instrument was delivered merely in escrow.42 The grantor may, how40. Calhoun County v. American Emigrant Co., 93 U. S. 124, 127, 23 L. Ed. 826; Ober v. Pendleton, 30 Ark. 61; Heney v. Pesoli, 109 Cal. 53, 41 Pac. 819; Stanley v. Valentine, 79 111. 544; Jackson v. Rowley, 88 Iowa, 184, 55 N. W. 339; Daggett v. Daggett, 143 Mass. 516, 10 N. E. 311; Black v Shreve, 13 N. J. Eq. 455, 458; Hinman v. Booth, 2 Wend. (N. Y.) 267; Thornhill v. Olson, 31 N. D. 81, L. R. A. 1916A, 493, Ann Cas. 1917E, 427, 153 N. W. 442; Powers v. Rude, 14 Okla. 381; Bradford v. Durham, 54 Ore. 1, 135 Am. St. Rep. 807, 101 Pac. 897; Sharp v. Kilborn. 04 Ore. 371, 130 Pac. 735; Etheredge v. Aetna Ins. Co., 102 S. C. 313, 86 S. E. 687; Schmidt v. Mus-son, 20 S. D. 389, 107 N. W. 367; Morris v. Blunt, 35 Utah, 194, 99 Pac. 686.

41. Dixon v. Bristol Sav. Bank, 102 Ga. 461, 31 S. E. 96, 66 Am. St. Rep. 193; Forcum v. Brown, 251 111. 301, 96 N. E. 259; Jackson v. Lynn, 94 Towa, 151, 58 Am. St. Rep. 386, 62 N. W. 704; Seibel v. Higham, 216 Mo. 121, 129 Am. St. Rep. 502, 115 S. W. 987 (semble); Harkreader v. Clayton, 56 Miss. 383, 31 Am. Rep. 369; Wood v. French, 39 Okla. 685, 136 Pac. 734; Boswell v. Pannell, - Tex. Civ. App.-, 146 S. W. 233; Smith v. South Royalton Bank. 32 Vt 341; Everts v. Agnes, 4 Wis. 343, 65 Am. Dec. 314, 6 Wis. 453; Franklin v. Killilea, 126 Wis. 8S. l04 N. W. 993; Cobban v. Conklin, 125 C. C. A. 451, 208 Fed. 231; United States v. Payette Lumber & Mfg. Co., 198 Fed. 88. See ante, Sec. 461, note 50.

42. Bailey v. Crlm, 9 Hiss. (U. S.) 95; Mays v. Shields, 117 ever, it is said, waive the condition, as by recognizing the instrument as operative although the condition has not been satisfied,43 and even his mere failure, for an unreasonable time, to take measures to cancel or otherwise nullify the instrument after it has passed into the grantee's control may preclude him from thereafter asserting, as against an innocent purchaser, that his delivery thereof was conditional.44

A distinction in this regard is asserted in some of the books between an instrument delivered as an escrow, not to take effect as the grantor's deed until the satisfaction of a condition, and an instrument handed to a third person, as the grantor's deed, to be "delivered" to the grantee upon the satisfaction of a condition; it being said that, in the latter case, as distinguished from the former, the instrument is the grantor's "deed presently," and if the grantee obtains possession thereof even before the satisfaction of the condition it becomes

Ga. 814, 45 S. E. 68; Quick v. Milligan, 108 Ind. 419, 58 Am. Rep. 49; Hubbard v. Greeley, 84 Me. 340, 17 L. R. A. 511, 24 Atl. 799; Schurtz v. Colvin, 55 Ohio St. 274, 45 N. E. 527; Wood v. French, 39 Okla. 685, 136 Pac. 734; Blight v. Schenck, 10 Pa. St. 285, 51 Am. Dec. 478; Spotts v. Whitaker, - Tex. Civ. App.-, 157 S. W. 422; King v. Diffey, -Tex. Civ. App. - , 192 S. W. 262.

And that the grantor may he estopped by reason of his failure to act promptly against the grantee after the wrongful acquisition of the instrument by the latter, see Allen v. Powell, (Ind. App), 115 N. E. 96; Baillarge v. Clarke, 145 Cal. 589, 104 Am. St. Rep. 75, 79 Pac. 268; Leonard v. Shale, 266 Mo. 123, 181 S. W. 16. See post, Sec. 462, note 44.

43. Jackson v. Badham, 162 Ala. 484, 50 So. 131; Mays v. Shields, 117 Ga. 814, 45 S. E. 68; Eggleston v. Pollock, 38 Neb. 188, 56 N. W. 805; Oland v. Malson, 39 Okla. 456, 135 Pac. 1055; Truman v. Mccollum, 20 Wis. 70.

As well suggested in Mr. Ewart's admirable work "Waiver Distributed," at p. 130, in such a case of waiver, so called, of the condition on which delivery is made, the condition is to be regarded as being subject, in its creation, to the grantor's option, that is, the grantor has the privilege of having it regarded as conditional or not conditional.

44. Mays v. Shields, 117 Ga. 814, 45 S. E. 68; Haven v. Kramer, 41 Iowa, 382; Johnson v. Erlandson, 14 N. D. 518, 105 N. W. 722; Connell v. Connell, 32

Immediately operative.45 This distinction is strongly asserted in one case in this country,46 and in a few others it is referred to in terms of approval.47 In others it has been repudiated48 or referred to as questionable.49 The old books in which this distinction is asserted make it hinge upon the language used by the grantor or obligor in handing the instrument to the intended custodian, that is, upon whether the grantor handed it as his deed or as an escrow, it being regarded as his "deed presently" if referred to by him as his deed.50 At the present day it is entirely immaterial whether the grantor refers to the instrument as an escrow or as his deed, and the fact that the grantor directs the person to whom he hands the instrument to hand or "deliver" it to the grantee only upon the satisfaction of a condition would ordinarily be rew. Va. 319, 9 S. E. 252. See ante, Sec. 461, note 51. That the grantor may have the instrument cancelled if prematurely handed by its custodian to the grantee, see Anderson v. Goodwin, 125 Ga. 663, 54 S. E. 679; Bales v. Roberts, 189 Mo. 49, 87 S. W. 914. That he may have its record enjoined, see Matteson v. Smith, 61 Neb. 761, 86 N. W. 472.