Bryer's Executors v. Stewart

3 N.C. 111

• Court: Superior Court of North Carolina
• Decided: July 5, 1800
• Status: Published

Opinion

.And by the court, after two days taken to consider: — The question is, whether the endorsement be part of the boat! — for if it be, then an award made within the time limited by the endorsement, will be good, I agree with those who say that to be a part of the deed the indoisement must be made before the delivery thereof: but then if a deed be delivered and fail of he-effect, and the terms of it be to be ahered, and stick alteration be accordingly made, it is no longer the old contract, hot a new one ; and in order to effectuate the new contract, the deed cop* taming the same, must be delivered. The case in Cowper* where hivdiand and wife mortgaged the lands of the wife, and aftei the death of the husband, she wrote to the tenants to pay rent to the mortgagee ; this was construed to be a new delivery, because tantamount to a new assent to the contract, is in my opinion, decisive of the present: for if that act amounted to a new delivery where the widow never had the deed in h"r hands, how much more will the circumstances in this case amount to a delivery when the deed actually was in the defendant's hands, and the endorsement signed by him, and the whole paper redelivered to the obligee ? This made it to be n new deed in ictoj and consequently the endorsement being before the latter delivery, is a part of the deed- — 'and an award made bel> re the 8th of May, is good.

Judgment for the plaintiff;