45. Comyn's Dig. Fait, A 3; Perkins, Conveyancing, Sec.Sec. 143, 144; Sheppard's Touchstone, 59; Bushell v. Pasmore, 6 Mod. 217. The distinction is recognized in Murray v. Stair, 2 B. & C. 82, but apparently repudiated in Johnson v. Baker, 2 B. & Ald. 440.

46. Wheelwright v. Wheelwright, 2 Mass. 447, 3 Am. Dec. 66.

47. Hathaway v. Payne, 34 N. Y. 92; Martin v. Flaharty, 13 Mont. 96, 40 Am. St. Rep. 415;

Garded as showing that the original delivery of the instrument was conditional only. There is, it is submitted, absolutely no distinction between an instrument conditionally delivered as an escrow and one con-ditionallv delivered as a deed, and neither can take effect until the condition is satisfied. There is, it is true, a dictum of Chief Justice Shaw to the apparent effect that an instrument can be regarded as an escrow only when the delivery is conditioned upon the performance of some act by the grantee or obligee, while it is the grantor's "deed presently" if conditioned upon the occurrence of some other character of event,51 but as he cites no authority and states no reason in support of the dictum, it may, it is submitted, be disregarded, in view especially of the fact that there are quite a number of cases52 in which it is assumed without question that an instrument conditionally delivered is an escrow, although the condition does not involve the voluntary performance of any act by the grantee or obligee.

Ball v. Foreman, 37 Ohio St. 132; Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592; Wells v. Wells, 132 Wis. 73, 111 N. W. 1111.

48. State Bank at Trenton v. Evans, 15 N. J. L. 155, 28 Am. Dec. 400; Hall v. Harris, 5 Ired. Eq. 303.

49. See Jackson v. Sheldon, 22 Me. 569; Wellborn v. Weaver, 17 Ga. 267, 63 Am. Dec. 235. "The distinction on this point is quite subtle, and almost too evanescent to be relied on." 4 Kent's Comm. 455, n.

50. In Murray v. Stair, 2 B. & C. 82, it is said that the word "escrow" need not be used to make a delivery in escrow, but no criterion for the application of the asserted distinction is Indicated. See the judicious remarks of Hornblower, C. J., in State Bank at Trenton v. Evans, 15 N. J. L. 158, 28 Am. Dec. 400.

- Necessity of contract. It has been asserted in a number of cases that there can be no delivery in escrow unless it takes place as the result of an actual contract of sale between the parties to the instrument,

As, for instance, when the delivery is conditioned upon the payment by the grantee of an agreed price for the land. This view appears to have been first asserted in a California case,53 which, without naming any authority, stated this as one possible ground of its decision, and this was the only authority cited in a subsequent case in Wisconsin,54 which explicitly decided that in the absence of a valid and enforceable contract between the parties for the sale of the land, there could be no delivery in escrow. On the authority of this latter case and of one of the text books hereafter referred to, the same view was adopted, without discussion, by the Supreme Court of Utah,55 and it was likewises adopted in Oregon56 upon the authority of text book statements alone. There are occasional decisions to the same effect in other States,57 and various text books, on the authority of one or more of the cases above referred to, state this as settled law.58 The idea at the basis of this asserted requirement of an auxiliary contract in connection with conditional delivery appears to be that, in the absence of such a contract, the grantor can control the operation of the instrument, that, in other words,

51. Foster v. Mansfield, 3 Mete. (Mass.) 412, 37 Am. Dec. 154. The dictum is quoted with approval in Fine v. Lasater, 110 Ark. 425, Ann. Cas. 1915C, 385, 161 S. W. 1147; Grilley v. Atkins, 78 Conn. 380, 4 L. R. A. (N. S.) 816, 112 Am. St. Rep. 152, 62 Atl. 337; Taft v. Taft, 59 Mich. 185, 60 Am. Rep. 291; Stephens v. Rinehart, 72 Pa. St. 434; Landon v. Brown, 160 Pa. St. 538, 28 Atl. 921.

52. See e. g.; Prewitt v. Ash-ford, 90 Ala. 294, 70 So. 831; Conneau v. Geis, 73 Cal. 176, 2

Am. St. Rep. 785, 14 Pac. 580; Mcdonald v. Huff, 77 Cal. 279, 19 Pac. 499; Raymond v. Smith, 5 Conn. 555; Stone v. Duvall, 77 111. 475; Shults v. Shults, 159 111. 654, 50 Am. St. Rep. 188, 43 N. E. 800; Fitzgerald v. Allen, 240 111. 80, 88 N. E. 240; Millett v. Parker, 2 Mete. (Ky.) 608; Hoagland v. Beckley, 158 Mich. 565, 123 N. W. 12; Price v. Home Ins. Co., 54 Mo. App. 119; Gilbert v. North American Fire Ins. Co., 23 Wend. (N. Y.) 44, 35 Am. Dec. 543; Tooley v. Dibble, 2 Hill. (N. Y.) 641; Payne v.

Smith, 28 Hun (N. Y.) 104; Clarke v. Eureka County Bank, 123 Fed. 922.

53. Fitch v. Bunch, 30 Cal. 208, approved in Miller v. Sears, 91 Cal. 282, 25 Am. St. Rep. 176; Holland v. Mccarthy, 173 Cal. 597, 160 Pac. 1069. Professor R. W. Aigler considers that this case first cited merely asserted, in effect, that the absence of a contract of sale is conclusive, or approximately conclusive, that no delivery has been made, that, in other words, the depositary holds it subject to the grantor's control. See article 16 Mich. Law Rev. 569.

54. Campbell v. Thomas, 42

Wis. 437, 24 Am. Rep. 427.

55. Clark v. Campbell, 23 Utah, 569, 54 L. R. A. 508, 90 Am. St. Rep. 716, 65 Pac. 496.

56. Davis v. Brigham, 56 Ore. 41. 107 Pac. 961, Ann. Cas. 1912B, 1340, followed in Foulkes v. Seng-stacken, 83 Ore. 118, 163 Pac. 311.

57. Main v. Pratt, 276 111. 218, 114 N. E. 576; Mclain v. Healy, 98 Wash. 489, 168 Pac. 1; Freeland v. Charnley, 80 Ind. 132. See Seibert v. Lanz, 29 N. D. 139, 150 N. W. 568.

58. 16 Cyclopedia Law & Proc. 562; 11 Am. & Eng. Bncyc. Law (2d Ed.), 335; 1 Devlin, Deeds, 313.

He may revoke the delivery.59 Such an idea is, it is conceived, absolutely erroneous,60 and involves an entire misapprehension of the nature of conditional delivery. After the delivery of the instrument of conveyance, whether absolutely or conditional, the parties stand in the relation, not of vendor and purchaser under a contract but of grantor and grantee under a conveyance, and consequently the question of the existence of a valid contract of sale, is immaterial.61 There is no more reason for regarding the conditional delivery of a conveyance as invalid in the absence of an enforcible contract of sale than for so regarding an absolute delivery.