Miller v. Fletcher

• Decision Date: 06 April 1876
• Citation: 68 Va. 403
• Court: Virginia Supreme Court
• Parties: MILLER v. FLETCHER & als.

68 Va. 403

MILLER v. FLETCHER & als.

Supreme Court of Appeals of Virginia.

April 6, 1876

1. If a bond, perfect on its face, is delivered to the obligee as an escrow, to be valid upon another person's executing it, it is valid, though the condition is not complied with.

2. A deed, perfect on its face, cannot be delivered as an escrow to the grantee or obligee, upon a condition upon which it is to be a valid deed. In all such cases the condition is void and the deed is at once operative.

3. Parol evidence is inadmissible, to prove that a deed, perfect on its face, was delivered to the grantee on a condition.

This was an action of debt in the circuit court of Rappahannock county, brought in January 1871 by John S. Fletcher against James F. Brown, Benjamin F. Miller and John Miller, upon a bond of $2,409.51, bearing date the 4th of September 1861 and payable on demand. The bond was perfect on its face.

B. F Miller, one of the defendants, filed a special plea, that the writing declared on was made and delivered as an escrow to the plaintiff, on the express condition, and none other, that John Miller and Eastham Jordan should sign and seal it as their own act and deed, and should become bound equally and jointly with the said James F. Brown and B. F. Miller; and if the said John Miller and Eastham Jordan should refuse, or fail to sign, seal and deliver the said writing as joint coö bligors of the said James F. Brown and B. F. Miller, the same was not to bind the said B. F. Miller, but was to be held null, & c.; and he avers that said Eastham Jordan did not sign, seal and deliver the said writing; and so, & c.

The plaintiff demurred to the plea; but the court overruled the demurrer.

Upon the trial of the cause, the defendant, B. F. Miller, was introduced as a witness, and his counsel proposed to prove by him that a firm, under the style of Brown, Miller & Co., composed of the three defendants and Eastham Jordan, who were dealers in cattle, on the 4th of September 1861 owed the plaintiff the sum of $2,409.51 on a transaction between them, for which the plaintiff held their written contract not under seal, and that he desired to change the form of the evidence of the debt, and applied to B. F. Miller to execute the bond sued on: and that B. F. Miller executed the bond upon condition, that all the other members of the firm should execute said bond. But the court excluded all evidence of the facts proposed to be proved, save as to the conditions upon which the bond was executed: And the defendant excepted.

The plaintiff was then sworn in his own behalf, and on his cross-examination the defendant proposed to prove by him the facts stated in the foregoing exception, as to the original debt. But the court excluded the evidence; and the defendant again excepted.

The jury found in favor of the plaintiff for $2,409.51, with interest from the 4th September 1861, subject to the credits endorsed upon the bond; and the court rendered a judgment according to the verdict. Whereupon B. F. Miller applied to a judge of this court for a supersedeas; which was awarded.

W. W. Gordon, for the appellant.

Brooke & Scott, J. C. Gibson and Menifee, for the appellee.

OPINION

STAPLES, J.

This is an action founded upon a bond or single bill for the payment of money. The defendants plead, that it was executed by them in satisfaction of a debt due the plaintiff by the firm of Brown, Miller & Co., and delivered to the plaintiff as an escrow, upon condition it was to be likewise executed by two other members of said firm; but that in fact it had been executed only by one of them; and so the condition upon which the writing was to take effect had not been performed. The question raised by this plea, and which we are called upon to decide is, whether where a deed, perfect on its face, is delivered by the obligor or grantor directly to the obligee or grantee, it is competent to prove by parol evidence the delivery was upon a condition which has not been complied with, and thereby render the instrument inoperative as to the parties executing it.

In Sheppard's Touchstone, volume 1, pages 58, 59, the rule is thus laid down: " The delivery of a deed as an escrow, is said to be, where one doth make and seal a deed and deliver it unto a stranger, until certain conditions be performed, and then to be delivered to him, to whom the deed is made, to take effect as his deed. And so a man may deliver a deed, and such delivery is good. But in this case two cautions must be heeded: 1. That the form of words in the delivery of a deed in this manner be apt and proper. 2. That the deed be delivered to one that is a stranger to it, and not to the party himself, to whom it is made." After discussing the first ground of caution at some length, the learned author proceeds as follows: " So it must be delivered to a stranger; for if I seal my deed and deliver it to the party himself, to whom it is made upon certain conditions, & c., in this case let the form of the words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently; and the party is not bound to perform the condition; for in traditionibus chartarum, non quod dictum, sed quod factum est inspicitur. " Another reason assigned for this rule of the common law by Lord Coke is, " the delivery is sufficient without speaking of any words; and then when the words are contrary to the act, which is the delivery, the words are of none effect."

The doctrine here laid down by these learned writers has been sometimes spoken of by judges as extremely technical and unsatisfactory. It may be so; but after a very careful examination I have not been able to find any well considered case in which that doctrine has been directly overruled.

In Hicks v. Goode, 12 Leigh 479,490, Judge Cabell, in delivering the opinion of the court, conceded the distinction between a deed delivered as an escrow to the party to the deed, and one that is delivered to a stranger, and he was not disposed to controvert it. He said, " the reasoning on which the distinction is founded was not only technical but unsatisfactory to his mind. He considered it as settled, however, that if a deed be delivered to the party himself, to whom it is made as an escrow, but to become the deed of him who sealed it on certain conditions; in such case, whatever be the form of the words, the delivery is absolute, and the party is not bound to perform the conditions."

The counsel who argued that case, on both sides, admitted that such is the law; too well settled for controversy. It was insisted, however, on behalf of the defendant, that the rule applied only to a deed perfect and complete on its face, requiring nothing to be done to give it full efficacy as a deed, according to the intention, but the mere delivery. But where the instrument at the time it passes into the hands of the grantee or obligee is incomplete, and indicates clearly on its face that some other act is to be done to give it effect, according to the intention of all the parties, there it was insisted the rule did not apply, and it was competent to show by parol that the delivery was upon a condition which had not been performed. And so this court held; and it will be seen upon examination that the decision was placed upon that ground exclusively.

In Ward v. Churn, 18 Gratt. 801, Judge Joynes adverted to this rule of the common law: " He said it was strict and technical to the last degree; and yet he did not venture to deny that the doctrine is well settled." In the course of his opinion he cites with approbation some observations of Chief Justice Best in the case of Hudson v. Revett, 15 Eng. C. L. R. 467, wherein the learned chief justice quotes Comyn, vol. 4, page 276, 4 A., Fait as saying: " If the deed be delivered to the party as an escrow, to be his deed on the performance of a condition, it is not his deed till the condition be performed, though the party happens to have it before the condition is performed."

Now it is most remarkable, be it said with all humility, that two judges, so distinguished for accuracy and learning, should have fallen into such an error. What Comyn does say is this:

" So if it (the deed) be delivered to a stranger as an escrow, to be his deed upon performance of conditions, it is not his deed till the conditions are performed, though the party happens to have it before. 2 Rol. 25, 125, 45; Coke Lit. 36 a.

Or be delivered to a stranger to keep till conditions be performed, 2 Rol. 25, 1, 40.

Or to be delivered to the party as his deed upon performance of a condition."

Now this is relied upon by Chief Justice Best as authority for the position, that a deed may be delivered to the party upon condition, and it is good. But it will be perceived that Comyn means simply to affirm, that if the deed be delivered to a stranger, " to be delivered to the party as his deed upon performance of a condition, it is not his deed till the conditions be performed, though the party happens to have it before." That such was his meaning is manifest from the very next sentence, not noticed by the learned chief justice, in which he declares: " But a delivery cannot be to the obligee as an escrow." 2 Cro. 85, 86.

And in division A 3, page 274, Comyn again declares, that " if an obligation be made to A, and delivered to A himself as an escrow, to be his deed upon performance of a condition, this is an absolute delivery; and the subsequent words are void and repugnant."

A more remarkable instance of an entire misconception of an author's meaning has rarely been exhibited by a learned judge. It is worthy of observation, that Chief Justice Best himself does not assert the rule laid down by Sheppard is not sound law; he merely declares it a...