The Bank of Salem v. Caldwell

• Decision Date: 17 June 1861
• Citation: 16 Ind. 469
• Parties: The Bank of Salem, at New Albany, v. Caldwell
• Court: Indiana Supreme Court

16 Ind. 469

The Bank of Salem, at New Albany, v. Caldwell

Supreme Court of Indiana

June 17, 1861

APPEAL from the Knox Circuit Court.

The judgment is reversed, with costs. Cause remanded.

Samuel Judah, for the appellant.

C. M Allen, N. Usher, and Bowman & Harrow, for the appellee.

(1.) By counsel for appellee: The delivery of a deed to a mere depositary, upon a condition not performed in the lifetime of the grantor, is inoperative. Artcher v. Whalen, 1 Wend. 179; Carr v. Hoxie, 5 Mason's C. C. R. 16.

To constitute an escrow, it is necessary that the writing be delivered absolutely, upon express terms to be held until the condition be complied with, and that the party making the delivery shall have parted with all right to re-collect. Johnson v. Branch, 11 Humph. 520.

A deed must be delivered absolutely to pass the title. Wilson et ux v. Cassidy, 2 Ind. 562.

Until delivered, a deed remains in the power of a grantor. Hodges v. Hodges, 9 Mass. 307; Fay v Richardson, 7 Pick. 91; Hughes v. Easten, 4 J J. Marshall, 572.

At the time of delivery as an escrow, the condition must be stated Touchs. 59; Jackson v. Catlin, 2 Johns. 248.

OPINION

Hanna, J.

The State Bank of Indiana, for the use of the Branch at New Albany, sued Caldwell on two promissory notes. Answer and reply filed. Before the determination of the suit, the charter of said bank expired by limitation, but preceding the day of such expiration, the appellant had become the purchaser of said claim, together with other suspended debts due said bank, as it is averred in a supplemental complaint. It is also averred, that said notes were executed to secure the payment of a part of the purchase money for a certain lot, sold by the bank to said Caldwell, and still held and possessed by him; and that a deed had been made and tendered to him before suit brought; that the assignment was made, and the said deed handed over to said appellant, by virtue of the act of December 23, 1858, concerning the assets and assignees of the said State Bank. A power of attorney from said bank; the order of the board of directors of the said branch; the assignment by said attorney in fact, and the deed from the bank, are made parts of the supplemental complaint.

The answer was withdrawn, and a demurrer filed to said supplemental complaint, assigning two causes: First, that the assignment is not shown to have been by indorsement. Second that as the ...