Ward v. Churn

• Decision Date: 02 July 1868
• Citation: 59 Va. 801
• Parties: WARD & als. v. CHURN.
• Court: Virginia Supreme Court

59 Va. 801

WARD & als. v. CHURN.

Supreme Court of Appeals of Virginia.

July 2, 1868

1. A bond is drawn with the names of the principal and four persons as sureties inserted therein. The principal and three of these sureties sign it. Two of these sureties sign and deliver it upon the condition that a certain one of the other two named shall execute it; but he does not; and it is delivered to the obligee without his signature. HELD:

1. That whether the bond was delivered to a third person, not a party to the bond, or to the principal or any other co-obligor, the parties so delivering it on condition are not bound by the said bond; and it is not necessary to give effect to said condition, that the same should have been known by the obligee when the bond was delivered to him.

2. The bond being void as to the two who delivered it on condition, it is void as to the third surety, who executed it without any condition.

3. If the bond was delivered to the obligee on the condition stated, and the condition was known to him, he is not entitled to recover on the bond.

4. In an action on such a bond, in the absence of all evidence of a conditional delivery by the sureties who signed it, the presumption of law is, that they consented to the delivery of the bond without the signature of the other party, whose name is on the bond.

2. An instruction asked being equivocal, and being correct upon one construction of it, the court should not refuse to give it, but should give it with such an explanation of its meaning as to ensure its being understood by the jury.

This was an action of debt in the Circuit Court of Northampton county, brought by William Churn against John H. Powell Jackson B. Powell, George S. Powell and Alexander J. Ward upon a single bill, of which the following is a copy:

On demand for value received, we, John H. Powell principal, and Jackson B. Powell, Robert W. Powell, George S. Powell and A J. Ward, his securities, do hereby bind ourselves, our heirs executors and administrators to pay or cause to be paid unto William Churn, his heirs, executors, administrators or assigns, the just and full sum of one thousand and thirty-seven dollars and six cents, current money of Virginia. As witness our hands and seals this 1st day of January A. D. 1849.

J. H. POWELL. [ Seal. ]

J. B. POWELL. [ Seal. ]

__ __ ______ [ Seal. ]

G. S. POWELL. [ Seal. ]

A. J. WARD. [ Seal. ]

There was a judgment by default against J. H. Powell the principal and J. B. Powell, G. S. Powell and A. J. Ward pleaded jointly three pleas of non est factum; upon each of which issue was taken. These pleas are sufficiently set out in the opinion of Judge Joynes.

Upon the trial, the defendants moved the court for an instruction to the jury, which was refused; and they excepted. The jury found a verdict for the plaintiff for $1,740.06, with interest on the balance of principal due from the date of the verdict until paid; which the defendants moved the court to set aside, as being contrary to the law and the evidence. But the court overruled the motion, and rendered a judgment upon the verdict; and the defendants again excepted. Both these exceptions are set out in the opinion of Judge Joynes.

The defendants applied for and obtained a writ of error to the District Court of Appeals at Williamsburg, where the judgment was affirmed; and they then obtained a writ of error to this court.

A bond, executed by a part of the persons who were to execute it, and delivered to a third person to hold and be delivered only on condition that it is executed by the others, if delivered by him, does not bind the parties who so conditionally delivered it.

Fisher, for the appellants.

Scarburg, for the appellee.

JOYNES J.

This is an action of debt upon a single bill brought by William Churn against John H. Powell, Jackson B. Powell, George S. Powell and A. J. Ward. The bond, as written, purports to be the bond of John H. Powell as principal, and of the other parties and Robert W. Powell as securities. It was not executed by Robert W. Powell, a vacant space and seal being left for his name between those of Jackson B. Powell and George S. Powell. John H. Powell suffered judgment by default. The other defendants craved oyer of the writing in the declaration mentioned, and pleaded jointly three pleas, upon each of which the plaintiffs took issue. The first plea alleges that the said writing was made and signed by the said defendants, and by them delivered as an escrow (not stating to whom it was so delivered) " on the express condition, and none other, that Robert W. Powell, whose name is in the body of the said writing, should sign and seal it as his own act and deed, and should become bound jointly and equally with them, the said J. B. Powell, G. S. Powell and A. J. Ward as securities," & c., for the sum, & c.; " and if the said Robert W. Powell should refuse or fail to sign, seal and deliver the said writing as joint coobligor of the said defendants, the same was not to bind the said defendants, but was to be held null and void and of no effect." The plea then avers that the said Robert W. Powell did not so sign, seal and deliver the said writing, whereby the same became discharged, annulled and vacated, and so is not the deed of the defendants; concluding to the country. The second plea is like the first, substantially, except that it alleges that the said writing was delivered by the said defendants to William Churn, the obligee therein, as an escrow, on condition, & c. The third plea is a general plea of non est. factum.

On the trial the defendants moved the court to give an instruction to the jury, which was refused; and the defendants excepted. The bill of exceptions certifies that the defendant Ward wrote the bond in the declaration mentioned, at the request of John H. Powell, the principal; " that at the time of writing the said bond, the said Ward executed it upon condition that all the other securities named therein should also execute it, but the plaintiff Churn was not present at the time, nor was it proved that said Churn was informed when the said paper was handed to him, or at any other time, that the said Ward had executed it upon any condition; and the said Churn proved that he never was so informed. It was also proved that the defendant G. S. Powell executed the said paper at a different time and place, and that at the time he did so, he declared that he executed it upon condition that Robert W. Powell, whose name is mentioned in the body of the bond, should also execute it; but there was no proof that this was ever communicated to the plaintiff Churn, or that he was present when G. S. Powell executed said paper; and it was proved by said Churn that he was not informed of any such condition." Thereupon the counsel for the defendants moved the court to instruct the jury as follows: " If the jury believe from the evidence, that the defendants A. J. Ward and G. S. Powell executed the bond filed with the declaration in this case, upon condition that Robert W. Powell, whose name is inserted in the body of it, should also execute it as surety for John H. Powell, the principal obligor mentioned in said bond, then and in that case the jury are bound to find the issues for the defendants." The court said it would give the instruction with the addition, " provided that the plaintiff was informed that these defendants had executed the bond upon that condition; " to which addition the defendants objected; and the court refused to give the instruction asked otherwise than with that addition; to which refusal to give the instruction as asked the defendants excepted. It does not appear that any instruction was given. The only question, therefore, on this bill of exceptions is, whether the court properly refused to give the instruction asked for.

The law in relation to escrows is thus stated in the Touchstone, p. 57: " The delivery of a deed as an escrow is said to be when 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 used 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." The author then proceeds to explain what are the " apt and proper" words for such a delivery. But at the present day, no particular form of words is necessary, nor is it necessary that the condition should be declared in express words at the time of the delivery. It is only necessary that it should distinctly appear, from all the facts and circumstances attending the execution and delivery, that the instrument was not to take effect as a deed until a certain condition should be performed. Murray v. Earl of Stair, 2 Barn. & Cres. 82, (9 Eng. C. L. R. 33; ) Parke B. in Bowker v. Burdekin, 11 Mees. & Welsb. R. 127; 2 Washb. Real Prop. 585.

In reference to the second " caution," the author adds: " For if I seal my deed and deliver it to the party himself to whom it is made, as an escrow, 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 conditions; for in traditionibus chartarum non quod dictum est, sed quod factum est inspicitur. " The same law is laid down by Lord Coke in his first Institute, 36a, and more at large in Thorowgood's Case, 9 Rep. 137, where the contrary decision in Hawksland v. Gatchel, Cro....