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 .
A conditional delivery is usually referred to as a delivery "in escrow," or it is said that an instrument conditionally delivered is delivered as an "escrow." These forms of expression have the sanction of centuries of usage, and yet it may be questioned whether they are not calculated to give a wrong impression as to such a delivery. The word "escrow" meant originally, it appears, a piece or roll of parchment or paper, and its use in this connection doubtless has reference to the fact that an instrument conditionally delivered is not immediately operative. But an instrument in the form of a deed, which is conditionally delivered, is delivered as a deed, an instrument capable of legal operation, and not as a mere piece of paper. Otherwise it could not become legally operative upon the satisfaction of the condition. In the case of a conditional delivery, a delivery in escrow, the maker of the instrument in effect says: "I now deliver this as my date, if the acknowledgment was not necessary to the passing of title, and only then.
12. Kitchener v. Jehlik, 85 Kan. 684, 118 Pac. 1058; Loomis v. Pingree, 43 Me. 299 (semble); Henderson v. Baltimore, 8 Md. 352 (semble); Blanchard v. Tyler, 12 Mich. 339, 86 Am. Dec. 57; Miller v. Peter, 158 Mich.
336, 122 N. W. 780; Fontaine v. Boatmen's Sav. Inst., 57 Mo. 552; Barber Asphalt Pav. Co. v. Field, 174 Mo. App. 11, 161 S. W. 364; Bolaskey v. Furey, 12 Phila. (Pa.) 428 (semble); Kent v. Cecil, (Tex. Civ. App.), 25 S. W. 715.
12a. Ante, this section, note 77.
Act and deed, provided such a condition is satisfied," and not "I now deliver this as a mere piece of paper, provided such a condition is satisfied." The use of the word "escrow" in this connection is, however, so thoroughly established that any question as to its propriety is necessarily futile, and the expressions "conditional delivery" and "delivery in escrow" will here be used for the most part interchangeably.
- Physical transfer. The conception of a conditional delivery, a delivery in escrow, as ordinarily presented in the older English books, is of a transfer of the possession of the instrument to a third person, as custodian or depositary, with directions to him to hand it to the grantee or obligee named upon the satisfaction of the condition,13 and so in this country the cases have tended to emphasize the matter of the physical transfer of the instrument. If, however, the delivery of a deed is, as appears to be generally agreed, merely the expression, either by word or act, of an intention that the instrument shall have a legal operation, conditional delivery would seem properly to be merely an expression of an intention that the instrument shall have a legal operation provided a certain condition is satisfied, and adopting such a view, the physical transfer or custody of the instrument becomes of minor importance. An absolute delivery can be made without a physical transfer of the instrument,14 and it is difficult to see why a conditional delivery cannot be so made. There are in England judicial expressions to the effect that it can.15"16 The contrary view is a relic of the primitive formalism which attaches some peculiar efficacy to the physical transfer of the instrument, as involving a symbolical transfer of the property described therein.
13. Perkins, Conveyancing. Sec.Sec. 142-144; Sheppard's Touchstone, 59; 2 Bl. Comm. 307.
14. Ante, Sec. 461, notes 42, 43.
15-16. See Gudgen v. Bessett, 6 Ell. & Bl. 986; Xenos v. Wick-ham, L. R. 2 H. L. 296.
The manual transfer of the instrument, which is ordinarily assumed to be essential to a conditional delivery, must, according to the authorities in this country, be to a person other than the grantee, it being held that if the grantor, intending to make a conditional delivery, hands the instrument to the grantee, there is necessarily an absolute delivery.17 In England the older authorities are generally to the same effect,18 but there are occasional modern dicta to the contrary.19 That the mere physical transfer of the instrument should, in any jurisdiction, be allowed to override the grantor's explicit declaration of intention that the instrument shall not be immediately operative, is a striking illustration of the persistence of the primitive formalism before referred to.20 An instrument may be
17. Alabama Coal & Coke Co. v. Gulf Coal & Coke Co., 165 Ala. 304, 51 So. 570; Campbell v. Jones, 52 Ark. 493, 6 L. R. A. 783; Mowry v. Heney, 86 Cal. 471, 25 Pac. 17; Larsh v. Boyle, 36 Colo. 18, 86 Pac. 1000; Walker v. Warner, 31 Dist. Colo. App. 76; Duncan v. Pope. 47 Ga. 445; Mays v. Shields, 117 Ga. 814, 45 S. E. 68; Whitney v. Dewey, 10 Idaho, 633; 69 L. R. A. 572; Mccann v. Atherton, 106 111. 31; Potter v. Barringer, 236 111. 224, 86 N. E. 233; Robinson, Norton & Co. v. Randall. 147 Ky. 45, 143 S. W. 769; Hubbard v. Greeley, 84 Me. 340, 17 L. R. A. 511, 24 Atl. 799; Ward v. Lewis, 4 Pick. (Mass.) 518; Arnold v. Patrick, 6 Paige (N. Y.) 310; Worrall v. Winn, 5 N. Y. 229, 55 Am. Dec. 330; Gaston v. City of Portland, 16 Ore. 255. 19 Pac. 127; Keenan & Wade v. City of Trenton, 130 Tenn. 71, Ann. Cas. 1916B, 519, 168 S. W. 1053; Miller v. Fletcher, 27 Gratt. (Va.) 403,
21 Am. St. Rep. 356; Richmond v. Morford, 4 Wash. 337, 30 Pac. 241, 31 Pac. 513; Gaffney v. Stowers, 73 W. Va. 420, 80 S. E. 501. But see Wilson v. Wilson, 158 567, 49 Am. St. Rep. 176, 41 N. E. 1007; Stanley v. White, 160 111. 605, 43 N. E. 729.
18. They are cited in 13 Vin. Abr. Fait (O.); Norton, Deeds, 17; 10 Halsbury's Laws of England, p. 388. See Co. Litt. 36a; Sheppard's Touchstone, 59.
19. Watkins v. Nash, L. R. 20 Eq. 262; London Freehold and Leasehold Property Co. v. Suffield, L. R. 2 Ch. 608, at p. 621; Hudson v. Pevett, 5 Bing. 368; Bower v. Burdekin, 11 M. & W. 128, 146.