Blight v. Schenck

• Decision Date: 03 May 1849
• Citation: 10 Pa. 285
• Court: Pennsylvania Supreme Court
• Parties: BLIGHT <I>v.</I> SCHENCK.

10 Pa. 285

BLIGHT v. SCHENCK.

Supreme Court of Pennsylvania.

April 19, 20, 1849.

May 3, 1849.

April 19, 20.

CERTIFICATE from the Nisi Prius.

COPYRIGHT MATERIAL OMITTED

Cuyler, for plaintiff in error.—There was no evidence that anything was said to the alderman at the acknowledgment; nor was there any qualification of the effect of that act. The deed was perfected in form, and left with him without more. It is the subsequent declarations of Bradford, which must make the delivery in escrow. Now, it is settled, that any intention different from that apparent on the face of the deed, must be declared, at the execution, to be effectual: 1 J. C. R. 240. And, to prove these matters, the subscribing witnesses must be called: 8 W. & S. 172; Saxt. 458; 4 Hals. 153; 6 Conn. 111; Cro. Eliz. 7. The question is, then, was there a delivery before the instructions to Curtis. It seems that the leaving the deed, perfected in form, with the officer, was a delivery. In Cro. Eliz. 7, there was nothing but a leaving of the deed by the grantor, and it was held a delivery. So in 1 John. Ca. 116, it is said that a design to retain it, to secure the purchase-money, does not prevent the operation of the acknowledged delivery, to pass the legal title.

This is the very case before the court, and it is essential to the security of purchasers. But the delivery was still further completed. It is plain a delivery was acknowledged before the alderman, for he signs it as a witness to the delivery. There was, therefore, a verbal acknowledgment of delivery, which is sufficient, without any act done: Touch. 57. If Mr. Bradford had retained the deed under these circumstances, without evidence of an intent that it should not operate immediately, there would have been an effectual delivery: Smith on Cont. 9; 5 B. & C. 671; 8 C. & P. 124. How much more is this so, where he absolutely parts with the possession without a declaration of intent.

Under the circumstances of a possession by the grantee, under an apparently perfect title, and the intervention of a purchaser without notice, the onus of proving the defect in the title is on the plaintiff, and that must be strict. This he failed in. There was nothing in evidence disproving a delivery by Blight, or the receipt of the purchase-money by him or by Curtis. If received by Curtis, then the title was perfect, for he must have been Bradford's agent, otherwise the delivery to him, as Darrach's agent, was absolute: Touch. 58; 16 Verm. 530.

We are purchasers for value, on the faith of the written declarations of the grantor. He cannot, therefore, be permitted to gainsay them: 6 S. & R. 401; 6 W. 339; 1 Stor. Eq. § 388 et seq. 439; 1 Fonb. Eq. b. 1, c. 3, § 4, n. It is not for him to lead us into error, and then take advantage of it: Story, § 384-5; our equities are equal, and we are entitled to the protection of the legal title.

V. L. Bradford and Scott, contrà.—There was evidence, and so the jury found, that there was a previous arrangement, by which this deed was to be delivered as an escrow, and we are within the very point of Souverbey v. Arden, for there was evidence of no intention to deliver when the deed was left with the alderman. To the same effect are the other cases cited, particularly Jackson v. Dunlop, which decided that the deed was never perfected. Here the delivery did not take place until the deed was handed to Curtis, as an escrow. The acknowledgment is but slight primâ facie evidence of delivery, for it is the universal custom to acknowledge deeds before delivering them. The fact that it was not taken away is explained by the circumstances. It was left there by Curtis, and afterwards received, under the instructions to hold it in escrow.

It is said the burden of proof is on the plaintiff; but he had shown a legal title. The defendant exhibited a deed, and the uncontradicted evidence was, that it was delivered in escrow. It was then for the defendant to show a compliance with the condition. There was no evidence of this, but the presumption arising from the possession of the deed. But the delivery in escrow to a third person does not authorize him to deliver absolutely until the condition is performed: 1 J. C. R. 248; 2 W. 362; 8 John. 404; 6 Wend. 666; 6 Mass. 60. Here Curtis was the special agent of the grantor. No presumption arises of his having a general authority; on the contrary, the grantee must prove that the agent had authority to act: 7 Pick. 91. 16 Verm. 530, differs in many respects — there the agent was acting for the grantee — the condition was, payment of money for the trouble of executing — and the case rather turns on the doctrine forbidding conveyances by parties out of possession. Darrach was, of course, bound to notice this condition, and as by it the deed was void, or rather never existed, it is not the case of collateral fraud, from which a bonâ fide purchaser is discharged: 1 W. C. C. R. 79; 4 Wh. 382; 2 Barr, 195. Neither possession nor the acknowledgment and recording of the deed dispenses with the necessity of proof of delivery: Touch. 57; 4 Wh. 387; 7 Greenl. 187; 2 Barr, 193; 1 Pa. 32; 4 Litt. S. C. 466; 6 Pet. 124; 15 Wend. 545; 13 Pick. 69; 10 Mass. 456; 2 W. 359. And the fact, that Darrach was in possession under another title discharges the plaintiff from the charge of negligence which the defendant might take advantage of. Nothing was done by the plaintiff to entitle defendant to the protection of the rule contended for.

Nor is there any need of the interference of equity. The contract was in fieri, until perfected by delivery: 3 Pa. 447; and, until then, there is no room for the interference of equity: 1 S. & R. 42. The defendant, moreover, had it in his power to prove a compliance with the conditions, by either Curtis or Darrach, and it could not be expected that the plaintiff should examine them to prove their own fraud.

May 3. ROGERS, J.

In Souverbey v. Arden, 1 J. C. R. 240, it is ruled, that the declarations of the intention or understanding of a grantor, different from the intent apparent on the face of the deed or of conditions annexed to it, to be effectual, must be made at the time of executing it. That if, at the time of executing a deed, there was no delivery or intention to deliver — these are facts which should be explicitly proved by the grantor. If, therefore, the acts and declarations of Mr. Bradford, at the time of the execution and acknowledgment of the deed, amounted to a delivery, his subsequent conduct the next day cannot affect or divest the title. The question must be examined in reference to that point of time, throwing entirely out of view what the witness proved afterwards took place.

The 5th section of the act of 1715 enacts, that all recorded deeds, &c., shall have the same force and effect for giving possession and seisin, and making good the title and assurance of lands, tenements, and hereditaments, as deeds of feoffment with livery of seisin, or deeds enrolled in any of the king's courts of record at Westminster have, in the kingdom of Great Britain.

Now, although recording the deed is not an absolute delivery, but only evidence of it, as is ruled in Chess v. Chess, 1 Penna. 34, yet, as the fact of delivery is the assurance of the title in the hands of an innocent purchaser, it is entitled to great weight and consideration. A purchaser for value has a right to act on the faith that it has been signed, sealed, delivered, and acknowledged, as it purports to be, in proper form and by proper parties. He cannot suppose it was surreptitiously taken from the grantor, and put on record by circumvention and fraud; and hence, as is decided in Souverbey v. Arden, already cited, before he can be deprived of his property, the facts which avoid his title must be proved by the grantor by the most unexceptionable testimony. Has the plaintiff made out such a case as avoids the deed, depends mainly on the testimony of Mr. Bradford, who proves that he went to the office of the alderman, found the deed there already executed by the co-assignee; that he signed and acknowledged it himself, without any qualification, and went away, leaving the deed where he had found it. It is true, he went the next day to the office of Curtis, the agent of both parties, and told him not to deliver any of the deeds, where the purchasers were to pay money, until he received the money. If the act of Mr. Bradford, at the office of the alderman, was in law a delivery, his subsequent acts can have no effect in divesting a title already vested in the grantee: 1 J. C. R. 240. That the delivery was complete when the grantors declared, before the proper officer, that they signed, sealed, and delivered the deed, without saying or doing anything to qualify the delivery, is well settled on authority. If the grantee had been present at the time, either personally or by agent, no person would doubt that the title vested; but it is ruled, that this will not prevent it taking effect as a good deed. Thus, in Garnons v. Knight, 5 B. & C. 671, and Lloyd v. Bennett, 8 C. & Pay. 124, the principle deduced by Mr. Justice Bayley, in a most elaborate review of all the authorities, is, that when an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping of the deed in the hands of the executing party — nothing to show that he did not intend it to operate immediately — that is a valid and effectual deed, and that delivery to the party who is to take by it, or any other person for his use, is not essential.

But this case, be it remarked, is stronger than the case cited; for there was not only a complete and unconditional acknowledgment of the signing and delivery, but the grantor did not even retain the deed, but left it with the magistrate. Shepherd, in his Touchstone, p. 57, lays it down that delivery to a stranger will be a sufficient delivery if he has authority to receive it, or if made for the use and on...