The following opinion was filed at the August term, 1875.
LyoN, J.
If the deed deposited by Thomas with Judge Hand was an escrow, we have no doubt the conditions upon which the same was to be delivered to the plaintiff, who was the grantee named therein, might lawfully rest in parol and be proved by parol. Was the instrument an escrow? If Thomas, notwithstanding the deposit, retained control of it, it was not, Etnd he might lawfully reclaim it or prevent a delivery of it to the plaintiff. See Prutsman v. Baker, 30 Wis., 644, and cases cited.
It is very clear that unless there was a valid contract between Thomas and the plaintiff for thé sale and purchase of the land described in the deed deposited with Judge Hand, such deposit was the mere voluntary act of Thomas, which in no manner interfered with or affected his control of the instrument. Fitch v. Bunch, 30 Cal., 208. Hence, the con[441]*441trolling question to be determined, is, Did Thomas and tbe plaintiff make a valid contract for tbe sale and purchase of tbe land?
They agreed verbally, tbe plaintiff to purchase and Thomas to sell, on certain terms, which included the execution of a mortgage on the land, by the plaintiff, to secure the payment of a portion of the purchase money. Eut such verbal agreement was a nullity, by the statute of frauds, there having been no such part performance of the agreement as would take it out of the statute. There was no valid contract, unless the same, or some note or memorandum thereof, expressing the consideration, was in writing, and subscribed by Thomas. E. S., ch. 106, sec. 8. The only wilting subscribed by Thomas, which relates to any such contract, is the deed he deposited with Judge Hand. That instrument expresses a consideration, and, if it contained the whole contract, we should have no difficulty in holding that it answers the requirements of the statute. But the difficulty is, that the deed does not contain the whole contract. It is essential to the plaintiff’s case to maintain, and he does maintain, that he was to give Thomas his notes for a portion of the purchase money, and was to execute his mortgage on the land in controvérsy, to secure the same. No note or memorandum in writing of this portion of the agreement was made, and the same still rests in parol.
The contract expressed in the deed deposited with J udge Hand is a contract to sell and convey the land — the whole title thereto, absolutely, and without any reservation whatever, to the plaintiff, for a specified sum of money. But proof of such a contract is not sufficient to entitle the plaintiff to judgment. His right of action depends upon proving that Thomas was to retain a mortgage interest in the land as security for part of the purchase money. Had the mortgage been drawn and signed by the plaintiff at the same time the deed was signed by Thomas, and deposited with the deed, it would, probably, have been a sufficient compliance with the [442]*442statute. By a familiar rule of law, tbe two instruments would, in sucb case, be construed, together as constituting a single contract. But tbe mortgage was not then drawn and signed, and a most material portion of tbe verbal agreement — that portion upon which tbe plaintiff’s right of action depends, was suffered to remain in parol.
It necessarily follows that there was no valid contract between the plaintiff and Thomas for the purchase and sale of the land; that the deed deposited with Judge Hand was not an escrow, but remained under the control of Thomas; and that Judge Hand properly refused to deliyer it to the plaintiff, after such delivery had been forbidden by Thomas,
This case, in principle, is much lite that of Thomas v. Sowards, 25 Wis., 631, which was sharply criticised by the learned counsel for the plaintiff. We think that case was correctly decided. There is, however, language in the opinion which seems to assert the doctrine that although the whole of a parol contract for the sale of'.lands is stated in a deed of such lands, made pursuant to the contract and delivered as an escrow, such contract is nevertheless'void if otherwise it remains in parol. We think that doctrine is erroneous.
Thayer v. Luce & Fuller, 22 Ohio St., 62, is an instructive case on this subject, and sustains the views above expressed. Thayer and Fuller signed an imperfect memorandum of a contract for the sale by Thayer to Fuller of certain land. The memorandum was defective in that it contained no description or designation whatever of the land affected by the contract. At the same time Thayer signed and acknowledged an instrument in writing purporting to be a conveyance to Fuller of the land which he had, in fact, agreed to convey to him, and presented the instrument fo Fuller for his approval of its terms and of the description of the land. Fuller orally assented to and approved the instrument, and returned it to Thayer, in whose hands it remained, i The action was to compel Thayer specifically to perform his Contract to sell and convey the land [443]*443to Luce and Fuller (who were jointly interested therein), and specific performance was decreed.
The defense of Thayer was, that the alleged contract was void under the statute of frauds. It was held that the memorandum alone was not sufficient (because of such defect) to prove a valid contract of sale, but that the defect therein was supplied by the deed; the law being that the two instruments should be construed together. The court says that the passing of the deed to Fuller for his approval showed an intention by Thayer to make a proposition to sell Fuller the land therein described on the terms therein written; and it proceeds to say that this “is a legitimate and proper way to negotiate a contract of sale, and instantly that the terms thus proposed are accepted, the contract of bargain and sale is complete — not executed in fact by transfer of title, but executory and evidenced by writing signed by the vendor, within the meaning of the statute. Nor does it matter in whose possession the instrument may afterwards be placed. The executory contract is subsisting, and will continue to be valid and binding upon the parties until mutually rescinded or consummated. Such is the case under consideration. The deed was signed by the defendant below, and delivered to the plaintiffs, not as a conveyance of title, but as evidence of their executory contract of bargain and sale.” It is further held that a parol acceptance by Fuller of the terms of the deed was sufficient.
In the present case it is unnecessary to say whether we would in a like case fully indorse the doctrine laid down by the supreme court of Ohio in Thayer v. Luce & Fuller. W.e so far adopt it here as to hold that, if a person who has made a parol agreement to sell land sign an instrument in the form of a conveyance of such land, to the vendee, and deposit it in escrow, if such instrument contains the terms of the parol agreement, including the consideration, it is a sufficient compliance with the requirements of the statute of frauds.
"W"e deemed it our duty to make the above comments upon [444]*444tbe case of Thomas v. Sowards,
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The following opinion was filed at the August term, 1875.
LyoN, J.
If the deed deposited by Thomas with Judge Hand was an escrow, we have no doubt the conditions upon which the same was to be delivered to the plaintiff, who was the grantee named therein, might lawfully rest in parol and be proved by parol. Was the instrument an escrow? If Thomas, notwithstanding the deposit, retained control of it, it was not, Etnd he might lawfully reclaim it or prevent a delivery of it to the plaintiff. See Prutsman v. Baker, 30 Wis., 644, and cases cited.
It is very clear that unless there was a valid contract between Thomas and the plaintiff for thé sale and purchase of the land described in the deed deposited with Judge Hand, such deposit was the mere voluntary act of Thomas, which in no manner interfered with or affected his control of the instrument. Fitch v. Bunch, 30 Cal., 208. Hence, the con[441]*441trolling question to be determined, is, Did Thomas and tbe plaintiff make a valid contract for tbe sale and purchase of tbe land?
They agreed verbally, tbe plaintiff to purchase and Thomas to sell, on certain terms, which included the execution of a mortgage on the land, by the plaintiff, to secure the payment of a portion of the purchase money. Eut such verbal agreement was a nullity, by the statute of frauds, there having been no such part performance of the agreement as would take it out of the statute. There was no valid contract, unless the same, or some note or memorandum thereof, expressing the consideration, was in writing, and subscribed by Thomas. E. S., ch. 106, sec. 8. The only wilting subscribed by Thomas, which relates to any such contract, is the deed he deposited with Judge Hand. That instrument expresses a consideration, and, if it contained the whole contract, we should have no difficulty in holding that it answers the requirements of the statute. But the difficulty is, that the deed does not contain the whole contract. It is essential to the plaintiff’s case to maintain, and he does maintain, that he was to give Thomas his notes for a portion of the purchase money, and was to execute his mortgage on the land in controvérsy, to secure the same. No note or memorandum in writing of this portion of the agreement was made, and the same still rests in parol.
The contract expressed in the deed deposited with J udge Hand is a contract to sell and convey the land — the whole title thereto, absolutely, and without any reservation whatever, to the plaintiff, for a specified sum of money. But proof of such a contract is not sufficient to entitle the plaintiff to judgment. His right of action depends upon proving that Thomas was to retain a mortgage interest in the land as security for part of the purchase money. Had the mortgage been drawn and signed by the plaintiff at the same time the deed was signed by Thomas, and deposited with the deed, it would, probably, have been a sufficient compliance with the [442]*442statute. By a familiar rule of law, tbe two instruments would, in sucb case, be construed, together as constituting a single contract. But tbe mortgage was not then drawn and signed, and a most material portion of tbe verbal agreement — that portion upon which tbe plaintiff’s right of action depends, was suffered to remain in parol.
It necessarily follows that there was no valid contract between the plaintiff and Thomas for the purchase and sale of the land; that the deed deposited with Judge Hand was not an escrow, but remained under the control of Thomas; and that Judge Hand properly refused to deliyer it to the plaintiff, after such delivery had been forbidden by Thomas,
This case, in principle, is much lite that of Thomas v. Sowards, 25 Wis., 631, which was sharply criticised by the learned counsel for the plaintiff. We think that case was correctly decided. There is, however, language in the opinion which seems to assert the doctrine that although the whole of a parol contract for the sale of'.lands is stated in a deed of such lands, made pursuant to the contract and delivered as an escrow, such contract is nevertheless'void if otherwise it remains in parol. We think that doctrine is erroneous.
Thayer v. Luce & Fuller, 22 Ohio St., 62, is an instructive case on this subject, and sustains the views above expressed. Thayer and Fuller signed an imperfect memorandum of a contract for the sale by Thayer to Fuller of certain land. The memorandum was defective in that it contained no description or designation whatever of the land affected by the contract. At the same time Thayer signed and acknowledged an instrument in writing purporting to be a conveyance to Fuller of the land which he had, in fact, agreed to convey to him, and presented the instrument fo Fuller for his approval of its terms and of the description of the land. Fuller orally assented to and approved the instrument, and returned it to Thayer, in whose hands it remained, i The action was to compel Thayer specifically to perform his Contract to sell and convey the land [443]*443to Luce and Fuller (who were jointly interested therein), and specific performance was decreed.
The defense of Thayer was, that the alleged contract was void under the statute of frauds. It was held that the memorandum alone was not sufficient (because of such defect) to prove a valid contract of sale, but that the defect therein was supplied by the deed; the law being that the two instruments should be construed together. The court says that the passing of the deed to Fuller for his approval showed an intention by Thayer to make a proposition to sell Fuller the land therein described on the terms therein written; and it proceeds to say that this “is a legitimate and proper way to negotiate a contract of sale, and instantly that the terms thus proposed are accepted, the contract of bargain and sale is complete — not executed in fact by transfer of title, but executory and evidenced by writing signed by the vendor, within the meaning of the statute. Nor does it matter in whose possession the instrument may afterwards be placed. The executory contract is subsisting, and will continue to be valid and binding upon the parties until mutually rescinded or consummated. Such is the case under consideration. The deed was signed by the defendant below, and delivered to the plaintiffs, not as a conveyance of title, but as evidence of their executory contract of bargain and sale.” It is further held that a parol acceptance by Fuller of the terms of the deed was sufficient.
In the present case it is unnecessary to say whether we would in a like case fully indorse the doctrine laid down by the supreme court of Ohio in Thayer v. Luce & Fuller. W.e so far adopt it here as to hold that, if a person who has made a parol agreement to sell land sign an instrument in the form of a conveyance of such land, to the vendee, and deposit it in escrow, if such instrument contains the terms of the parol agreement, including the consideration, it is a sufficient compliance with the requirements of the statute of frauds.
"W"e deemed it our duty to make the above comments upon [444]*444tbe case of Thomas v. Sowards, not because they are essential to the determination of this case, but to correct erroneous doctrine which seems to have there received the sanction of this court, although it did not control or affect the decision of the case before it.
We may properly conclude with a few general observations on the main question involved in the present case. The authorities cited on behalf of the plaintiff, and numerous other authorities on the subject of escrows, have been carefully examined, and we fail to find a case which conflicts with the foregoing views, or with the real decision of this court in Thomas v. Sowards. On the contrary, in Thayer v. Luce & Fuller, supra, the court said: “The statute requires written evidence of the agreement to the extent of charging the defendant.” It may be argued that, because the case was not one where a deed was deposited in escrow, it has no application here. But the court seems to have there declared a general principle, applicable to a case like this, as well as to the case before it.
Stanton v. Miller, 58 N. Y., 192, is much relied on by counsel for the plaintiff. There the whole contract affecting the land, and the condition or contingency upon which the depositary of the deed was to deliver it to the grantees named therein, were in writing, signed by the grantor. Such condition or contingency is thus expressed in one of the writings: “ The said deed is delivered to O. M. Benedict of Rochester in escrow, for the use of the grantees at my decease, and not deliverable to them before that time.” At the time of depositing the deed with Benedict, the grantor was advised that she-might recall it at her option. Subsequently she directed Benedict not to deliver,- but to destroy it. The instrument not having been destroyed, after the death of the grantor an action was brought to compel delivery thereof to such grantees. The court denied the relief prayed, on the ground that the written . contract was uncertain in respect to the parties to whom the conveyance was to be made. That is to say, it was held that [445]*445the grantor did not contract to convey to tbe grantees named in the deed, and hence that she might lawfully control the instrument after it was deposited with Benedict. The contract provided for a conveyance of some hind to the father of the persons named as grantees in the deed, and his family, or to such members thereof as the grantor might choose. The court says: “The making of a deed in escrow presupposes a contract pursuant to which the deposit is made;” and because the grantees named in the instrument deposited with Benedict could not show a valid contract with the grantor that she should convey the land to them, the court refused to adjudge delivery of the deed after the grantor had directed that no delivery thereof should be made. The fact that the grantor elected, a few days after the original contract was made, to whom she would convey the land described therein, failed to save the plaintiff’s case.
We perceive no ground on which, this plaintiff’s right of action can be sustained, unless it be held that, after having signed, acknowledged and deposited the deed as before stated, Thomas is estopped to deny that he made a valid contract with the plaintiff to sell and convey to the latter the land therein described, retaining a mortgage interest as security for a portion of the purchase money therefor. "We are not aware of any principle of law which will authorize an application of the doctrine of estoppel to such a case.
Our conclusion is, that the judgment of the circuit court must be reversed, and the cause remanded with directions to that court to dismiss the complaint.
By the Oowrt. — It is so ordered.
A rehearing having been granted on respondent’s motion, the cause was reargued at the August term, 1876 Further briefs were filed by the counsel already named, áTKToral arguments were again made by Mr. Tan Buskirk and Mr. Fish.
Eor the respondent it was contended, 1. That it is not true [446]*446tliat there must be a previous bindirig contract to convey land, in order to place a deed thereof, delivered to a third person on condition, for the grantee, beyond the grantor’s control. (1.) There are very numerous case$ which hold that where a party makes a deed on a good consideration only, and delivers it to a stranger, with absolute instructions to deliver to the grantee after the death of the grantor, such delivery is m escrow, and the title passes on the happening of the event. The following are some of these cases: Ruggles v. Lawson, 13 Johns., 284; Goodell v. Pierce, 2 Hill, 659; Tooley v. Dibble, id., 641; Hatch v. Hatch, 9 Mass., 307. In Goodell v. Pierce, the deed expressed no coüsideration, and parol evidence of relationship was admitted, to support it. No executory contract could have preceded the delivery of the deed in any case of this class, because a good consideration only is not sufficient to sustain such a contract. (2.) There is another class of cases where the grantor deposits his deed in escrow, with instructions to the depositary to deliver to the grantee in case the grantor fail to perform, within a given time, some condition, upon performance of which the depositary is to return the deed to the grantor. Of this class is Raymond v. Smith, 5 Conn., 555. In such cases the ultimate conveyance of the land by the grantor i$ not the end desired by him. It cannot be said, therefore, that the deed was made pursuant to a binding contract to convey; and none appears to have existed in any case of this class which has come under our notice. (3.) There is another classiof cases of delivery in escrow, in which there is no contract ‘between the parties, and no negotiation for sale, prior to th¿ delivery of the deed. Sparrow v. Smith, 5 Conn., 113; Coe v. Turner, id., 86. (4.) There is a long list of cases where the deed has been deposited, in pursuance of an oral agreement to convey land, and the depositary instructed to deliver to the grantee, on the performance of some condition by him. Of this class is Beekman v. Frost, 18 Johns., 543, 570—a case which it seems difficult to distinguish from [447]*447the one at bar. (5.) If, when A. makes a deed of land to B., his son, with no consideration except the relationship, and, with the assent of B., delivers it to 0. with instructions to delivér it to B. after A.’s death, it can be said that, because there was no contract binding A. to convey to B., the deed therefore remains under A.’s control and. may be recalled by him at any time, then 0. simply holds the deed as A.’s agent, and cannot make delivery after A.’s death, because that will terminate his agency. Litt., sec. 66; Co. Litt, 52 b; Tata v. Hilbert, 4 Bro. C. C., 291; Belden v. Carter, 4 Day, 66; Prutsman v. Baker, 30 Wis., 644. But all the authorities hold such a deed valid. In further support of the doctrine that a grantor who delivers a deed to a stranger, to be delivered to the grantee if he shall perform certain conditions — the grantee consenting to such delivery, — loses control over the instrument until the time of performance, and that, if the grantee performs the condition, the title passes and the deed must be delivered to him, counsel cited Perkins, 141; Graham v. Graham, 1 Ves. Jr., 272; Millett v. Parker, 2 Metc. (Ky.), 616; Cook v. Brown, 31 N. H., 476; Washb. R. P., 288. The cases that hold that the grantor has control over the deed, are cases where he reserves the right to control it (Prutsman v. Baker, supra); or where he delivers it with the understanding that he has a right to control it (Stanton v. Miller, 58 N. Y., 192); or where he delivers it without the knowledge or consent of the grantee (Welch v. Sackett, 12 Wis., 243). 2. That the condition on which a deed is to be delivered by the depositary to the grantee, is not a contract; and the courts uniformly hold that the instructions given the depositary may be either oral or in writing, or partly oral and partly in writing. Stanton v. Miller and Raymond v. Smith, supra,; Couch v. Meecker, 2 Conn., 302. In the latter case, Gould, J., says, that if the proof necessary to show the condition on which an esbrow is to be delivered to the grantee, u should happen to iivolve evidence of a parol agreement re[448]*448specting an interest in land, this circumstance cannot vary the rule. Ror the object and effect of the evidence are, not to enforce the latter agreement, but to show whether the written instrument is or is no.t the deed of the defendant.” The language of Swift, C. J., is equally explicit.
Ror the appellant it was argued, 1. That, irrespective of the statute of frauds, the alleged agreement between the parties was void for want of mutuality. [On this point numerous authorities were cited.] 2. That the statute of frauds required the whole contract of sale to be in writing. Wright v. Weeks, 3 Bosw., 372; Weed v. Clark, 4 Sandf. S. C., 31; Lang v. Henry, 54 N. H., 57; Beard v. Linthicum, 1 Md. Ch., 345; Thayer v. Luce, 22 Ohio St., 62; Fitch v. Bunch, 30 Cal., 208.
The cause was finally determined at the August term, 1877.
Lyok, J. The controlling question in this case is, whether it is essential to the plaintiff’s right of action that there was a valid executory contract between the parties for the purchase and sale of the land described in the deed of the defendant deposited with Judge Hand. If this question be answered in the affirmative, the plaintiff cannot recover; for it is certain that no note or memorandum of the alleged agreement under which the plaintiff claims, expressing the consideration thereof, was reduced to'writing and subscribed by the defendant. R. S., ch. 106, sec. 8.
The learned counsel for the plaintiff has met this question squarely, and, in his elaborate and most able arguments on the motion for a rehearing and on the rehearing of the cause, has maintained the proposition that “ it is not true that a person must be under a previous binding executory contract to convey the lands described in the deed to the grantee, in order to place a deed thereof, delivered to a third person on condition for the grantee, beyond the control of the grantor.”
Undoubtedly there is a class of cases in which this proposition is true. These are the cases where the deed has been [449]*449delivered by tbe grantor to a third person with instructions to deliver tbe same to tbe grantee on the happening of a future certain event — as the death of the grantor or some other person, — and sirch conditional delivery is assented to by the grantee. In such a case, if the grantor reserves no control over the deed, he cannot after such delivery recall it, but the grantee is entitled to it upon the happening of the event, although there is no valid executory contract to support it. The reason of this is, that the first delivery of the deed passes to the grantee the title to the land, and thus relieves him of the obligation to make title through any contract other than that expressed in the deed itself.
But by all of the authorities a deed so deposited with a third person to be delivered to the grantee on the happening of some event in the future which may or may not happen, does not pass title to the land described in it to the grantee until such event occurs, and then only from that time, or perhaps from the actual delivery of the deed to the grantee after the event has occurred. There may be exceptional cases, as where a man delivers his deed in escrow and dies before the conditions of the deposit are fulfilled. In such cases, it has been said that from necessity after the conditions are fulfilled the deed must take effect by relation as of the time of the first delivery. This, however, is not one of the exceptional cases; and it must be conceded, we think, that the deposit of the deed with Judge Hand by the defendant with the assent of the plaintiff did not transfer title to the plaintiff.
Because such deposit did not divest the plaintiff of his title to the land, there is no executed contract of sale; and hence, it seems almost too plain to be questioned or doubted that, before the plaintiff can obtain the delivery of the deed and the title to the land, after the defendant has recalled the deed and repudiated the whole transaction, he must show that the defendant has made a valid and binding agreement to sell and convey the land. And such an agreement can be evi[450]*450denced only by a written note or memorandum thereof, expressing the consideration and subscribed by the defendant.
In many of the cases cited, there was no valid executory contract for the sale of the land, but the grantor permitted the deed to be delivered by the depositary to the grantee upon performance of the parol conditions of the deposit. Undoubtedly, the final delivery to the grantee in such cases operated to pass the title; as it would in the present case had the defendant seen fit to allow his void parol agreement to be thus consummated. In other cases cited, there was a compliance with the statute of frauds. Everts v. Agnes, 4 Wis., 343, is one of them. But we have not discovered a single case in which it has been held that one who has deposited a deed of land with a third person with directions to deliver it to the grantee on the happening of a given event, but who has made no valid executory contract to convey the land, may not revoke the directions to the depositary and recall the deed at any time before the conditions of the deposit have been complied with; provided those conditions are such that the title does not pass at once to the grantee upon delivery of the deed to the depositary. *- » p-
The cases of Welch v. Sackett, 12 Wis., 243; Brandeis v. Neustadtl, 13 id., 142, and Prutsman v. Baker, 30 id., 644, as well as that of Thomas v. Sowards, 25 id., 631, contain much doctrine in perfect accord with the- views here expressed. The latter of these cases, as was observed in the first opinion filed herein, is direct authority that in this case the plaintiff must show a valid executory agreement for the sale and purchase of the land, or fail in the action. And here it should be observed that the language- of the opinion in Thomas v. Sowards which was commented on at some length in the former opinion in this case, was manifestly employed with reference to the facts in that case, without any intention to lay down a general rule of law applicable to other cases. Iu that view, the language seems unexceptionable. -So far as [451]*451those comments are concerned, I am still inclined to the opinion that the views there advanced are correct. The proposition that the executory contract may he proved by the deed (if it is stated therein) is, however, still open in this court for argument and decision in a proper caseT]
Our conclusion is, that this case was correctly decided in the first instance. The judgment of the circuit court must therefore be reversed, and the cause remanded with the direction to that court to dismiss the complaint.'