Alabama Coal & Coke Co. v. Gulf Coal & Coke Co.

• Decision Date: 03 February 1910
• Citation: 165 Ala. 304,51 So. 570
• Parties: ALABAMA COAL & COKE CO. v. GULF COAL & COKE CO.
• Court: Alabama Supreme Court

51 So. 570

165 Ala. 304

ALABAMA COAL & COKE CO. v. GULF COAL & COKE CO.

Supreme Court of Alabama

February 3, 1910

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Ejectment by the Alabama Coal & Coke Company against the Gulf Coal &amp Coke Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiffs claim title through deed from one Peters, who claimed title from Key. The defendants claim title through Musgrove, and from Key to Musgrove. It was undisputed that Key made a deed to Peters, which in some manner got upon the records. It was shown that this deed was delivered by Key to Hancock, who was purchasing land for Peters, with the agreement and understanding that it would not be delivered to Peters until the purchase price was paid, and it was shown that that had not been done. It was further shown that Hancock told Musgrove of the Key deed, but told him that the conditions had not been complied with, and that the deed had not been delivered to Peters because thereof, and that the deed was dead. It further appears that at the time Musgrove took the Key deed he did not know of the fact that the deed from Key to Peters was recorded, and that when he conveyed to defendant he was not aware of that fact. The court found these, among others, to be the facts, further finding that the delivery to Hancock was in escrow, and that there was never a delivery to Peters, and rendered judgment for defendant.

Smith &amp Smith and Aycuff & Cooner, for appellant.

Davis &amp Fite and Brooks & Stoutz, for appellee.

ANDERSON J.

The general rule is that the delivery of a deed to the grantee or his agent cannot be a delivery in escrow. Shelby v. Tardy, 84 Ala. 330, 4 So. 276; Cherry v. Herring, 83 Ala. 458, 3 So. 667. A delivery to the agent or attorney of the grantee has the same effect as a delivery to the grantee personally, and a deed so delivered cannot be an escrow. "Where a perfectly executed deed of release is delivered to a known agent of the release, it is in law a delivery to the principal; and it is immaterial by what verbal stipulations or conditions its delivery was accompanied, as to its operation after delivery, it will, notwithstanding, be operative from its delivery. It is not, however, an inevitable conclusion that the mere delivery of manual possession is a valid delivery of the deed. If the acceptance of an agency from both parties will involve no violation of duty to either, the releasor may make the agent of the releasee his own agent for the purpose of holding the deed as an escrow, and returning it to him in case a stipulated condition is not performed. The rule that a delivery to an agent of the grantee is equivalent to a delivery to the grantee himself would not apply in such a case, because there is not that personal identity between the releasee and his agent, upon which the reason for the rule depends. A grantor may make the agent of the grantee, it is conceded, his own agent for the purpose of holding the deed and returning it to him in case a condition agreed upon is not performed." Devlin on Deeds, vol. 1, § 316; Ashford v. Prewitt, 102 Ala. 264, 14 So. 663, 48 Am. St. Rep. 37; Cincinnati R. R. v. Iliff, 13 Ohio St. 235; Sou. Ins. Co. v. Cole, 4 Fla. 359; Price v. Pittsburg Co., 34 Ill. 13; Watkins v. Nash, L. R. 20 Eq. 262; Wier v. Batdorf, 24 Neb. 83, 38 N.W. 22.

The proof in the case at bar shows that, notwithstanding...