Daggett v. Daggett

Decision Date23 February 1887
Citation10 N.E. 311,143 Mass. 516
PartiesDAGGETT and others v. DAGGETT.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

H.M. Knowlton and A.E. Perry, for the tenant.

It is well settled that the manifest intention of the parties, to be gathered from all their acts and the circumstances, must be taken into consideration in determining what that intention was. No particular act governs, nor is there any one act essential or necessary to constitute a delivery. It is the intention of the parties at the time that controls. A delivery to an agent of the grantee is sufficient. Marsh v. Austin, 1 Allen, 235; Shaw v. Hayward, 7 Cush. 170. There can be a delivery without the deed being placed in the actual custody of the grantee or his agent. Regan v. Howe, 121 Mass. 426; Hawkes v. Pike, 105 Mass. 562; Snow v Orleans, 126 Mass. 453; Mather v. Corliss, 103 Mass. 568.

The tenant contends, even if the delivery was not complete at the time of the making of the deed, yet that it was delivered to Eliza as the grantor's deed, and, upon her giving it into possession of Silas afterwards, that the delivery should be deemed complete. Wheelwright v. Wheelwright, 2 Mass 452; Shaw v. Hayward, 7 Cush. 170. The time of fulfilling the condition is not limited. Timothy v. Wright, 8 Gray, 527. The judgment was conclusive in that action as to all that was adjudged in it, and that was the right of possession of the deed. Johnson v. Morse, 11 Allen, 542; Morse v. Marshall, 97 Mass. 523; White v. Chase, 128 Mass. 158.

H.F. May, for demandants.

That the form in which this action is brought is the proper one, is settled by Pratt v. Pond, 5 Allen, 59. As to the ruling refused by the court, see Brook, Abr. tit. "Non est Factum," pl. 4; Bodwell v. Webster, 13 Pick. 411. When a deed has been delivered as an escrow, it has no effect as a deed until the condition has been performed. 3 Washb. Real Prop. 302, 303; Tiedeman,§ 815. The authority of the depositary of an escrow is limited strictly to the conditions of the deposit, a compliance with which alone justifies a delivery. Wheelwright v. Wheelwright, 2 Mass. 447, 452; Bodwell v. Webster, ubi supra; Everts v. Agnes, 4 Wis. 343; 6 Wis. 453; County of Calhoun v. American Emigrant Co., 93 U.S. 127. The judgment of the court in the replevin suit did not affect this case. The possession or ownership of the deed by one party or the other has no effect on the title of the land. A verdict and judgment are conclusive, by way of estoppel, only as to those facts which were necessarily involved in them, without the existence and proof or admission of which such a verdict and judgment could not have been rendered. Burlen v. Shannon, 99 Mass. 200, 202. The question of title to land, as between Timothy Daggett or his representatives and the present tenant, could not have been decided in the replevin suit, nor could the title even, as between Eliza B. Daggett and Silaz Daggett, have been decided, but only her right to hold the deed or document as against him. Buttrick v. Holden, 8 Cush. 233; Bigelow, Estop. (4th Ed.) 98.

OPINION

C. ALLEN, J.

1. There was evidence sufficient to be left to the jury to show that the deed was delivered to Eliza merely as an escrow. The consideration mentioned in the deed was $300, but the grantee named therein paid nothing; and, upon all the evidence, the jury might think that the deed was not to be delivered to the grantee until he should marry Eliza, or make a bargain with somebody for the sale of the land, and pay to her the $300 mentioned as the consideration. We cannot say that the necessary construction of her testimony implied that the deed was to take effect at once, as the present deed of the grantor to the grantee; and, the jury having found otherwise, the deed must now be considered as having been delivered merely as an escrow.

2. When a deed is delivered merely as an escrow, to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed. The transaction is incomplete. It is not the grantor's deed until the second delivery. Even if the grantee obtains possession of it before the condition has been performed, yet it is not the grantor's deed, and he may avoid it by pleading non est factum. The grantee cannot acquire the title by gaining possession of the deed by theft, by fraud, or by the voluntary act of the depositary, but only by performance of the condition. The depositary has no authority to waive such performance, and an unauthorized delivery by him of the deed which he holds in escrow is entirely ineffectual to pass the title. Wheelwright v. Wheelwright, 2 Mass. 447, 452; Foster v. Mansfield, 3 Metc. 415; O'Kelly v. O'Kelly, 8 Metc. 440; County of Calhoun v. American Emigrant Co., 93 U.S. 124, 127; Watkins v. Nash, L.R. 20 Eq. 262; 3 Washb. Real Prop. 586. In the present case, it having been found that the deed was merely an escrow, and there being no pretense that the conditions were ever performed, no title passed to the grantee by the subsequent delivery of the deed to him. The case is not like cases where the delivery of the deed is merely to await the lapse of time, or the happening of some event not involving the performance of any condition by the grantee.

3. It being thus plain that no title passed to the grantee, the only remaining question is whether Eliza is estopped to maintain her rights by the judgment in the action of replevin, whereby he established against her his right to the possession of the deed. In the first place it is clear that the other demandant, Henry W. Daggett, cannot be affected by any such estoppel. He was no party to the action of replevin. The defense of estoppel, if available against Eliza, does not extend to him. But there is no estoppel even as to her. The title to the land could not be tried directly in the action of replevin, which lies only for personal chattels. Brown v. Wallis, 115...

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  • Daggett v. Daggett
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 23, 1887
    ...143 Mass. 51610 N.E. 311DAGGETT and othersv.DAGGETT.Supreme Judicial Court of Massachusetts, Dukes County.February 23, This was a writ of entry, brought to recover possession of a tract of land in Tisbury. The demandants were the heirs of Timothy Daggett, who died intestate in August, 1874.......

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