By the Court, Johnson, J.
It is quite immaterial whether this action is to be regarded as strictly in the nature of a bill in equity to remove a cloud upon the title to real estate, or generally in the nature of a bill quia timet, to settle the plaintiff's title to the estate, and establish it securely against all claims which may be brought against it by reason of the destroyed deed. That the defendants are now proceeding to acquire the title under the destroyed instrument, or to put themselves in a situation to assail the plaintiff’s title hereafter, and secure such title to themselves through that deed, is not denied. Indeed they ask for affirmative relief in their own behalf in their answer; which is nothing less than that the plaintiff's conveyance, under which she claims an absolute title to the premises, may be adjudged fraudulent and void and decreed to be canceled and annulled. The whole matter is therefore before the court upon the merits, having been fully tried upon all the questions of fact involved, without objection, and the court should proceed to a determination according to the very right of the case. It is too late, now, to suggest that the case is not properly before the court, for determination upon all the questions litigated between the parties. In either aspect, the case is clearly one of equitable cognizance, and I see no difficulty, upon the facts disclosed by the testimony, in maintaining the [122]*122action upon either or both grounds. The defendants’ answer1 and the aifirihative relief sought by that shows that the action has not been prematurely brought.
The action being maintainable, the jdaintiff’s right to the relief prayed for ' depends, I think, upon the question whether the first deed executed by Vary5 the grantor, and handed to the plaintiff, was delivered, so as to divest Vary of the title, and vest it in the plaintiff) or in her son who was named in the deed as the beneficiary. If it did, the. subsequent destruction of it by the plaintiff and the grantor would not change the title back to the grantor and reinvest him with it. This question, singularly enough, is not discussed or even alluded to by the plaintiff’s counsel) in his points.
If that deed took effect at all, its operation was to vest the title in the beneficiary named, as it was not a trüst authorized by statute, Wo estate, legal or equitable, vested in the plaintiff. (1 R. S. 727, 728, 729, §§ 47, 49, 55.) It would create in him afi estate subject to the condition contained, to wit: That he should pay the plaintiff the stim of $200 annually during her natural life. If this was a valid condition, it would subject the estate to a defeasance or forfeiture in his hands if the condition was not perforined. It was clearly a condition subsequent, and did not prevent the vesting of the estate if the deed was in law delivered, eken should the condition be held to be valid. I incline to the opinion, however) that the condition was not valid, and could never operate to defeat the title) although wholly unperformed; The condition was not in favor of the grantor or his heirs, but in favor of the plaintiff, wholly. It seems to be well settled, upon abundant authority, that a condition in a conveyance can only be reserved for the benefit of the grantor of the estate and his heirs, and that no stranger can take advantage of the breach of a condition, (4 Kent’s Com. 127. Co. Lit. 214 a, 214 b. 2 Greenl. Cruise, 4. Shep. Touch. 120. Craig v. Wellcs, 1 Kern. 323, Nicoll v. The New York and Erie Railroad Co., 2 id. 121.)
[123]*123But even if the condition could be held valid, in this case, it was never broken, or if it was, there was no re-entry on account of such breach -; and until such re-entry b.y the grantor or his heirs, the estate is not forfeited, but remains in the grantee; (See case last cited.) Mere neglect to perform the condition is not sufficient to work a forfeiture. But here the beneficiary and real owner was an infant. The condition was to pay the plaintiff $200 each and every year without any particular day of payment being specified. In such a case, I think; the owner would have the whole of the first year in which to make payment, so that the condition could not be deemed broken until the expiration of the year from the execution and delivery of the deed. The deed was destroyed before the expiration of the first year after its execution. The mere verbal refusal to make the payment; or to assume the obligation, was of no consequence, as the party was an infant at the time, and the plaintiff his only surviving parent. If the first deed ever took effect; therefore, so as to divest the grantor of his title; it vested in Franklin J. Fonda, and he has never been divested of it, and the plaintiff acquired no title or interest whatever by her second deed from the same grantor.
If this is the true state of the case, the plaintiff must not only fail in her action, but the defendants are entitled to the specific relief prayed for by them in their answer.
But I have come to the conclusion; after a careful consideration of the facts found by the referee, and of all the evidence, that the first deed was never delivered so as to take effect, and operate to transfer the title from the grantor therein to the grantee. To constitute a delivery of a deed so that it shall become effectual to transfer title to real estate from one to another, there must be an acceptance by the per*son to whom it is made. Acceptance by the grantee is an essential part of a delivery, in law. Where a deed or other instrument is handed over by the maker to the other party •and retained by such other party, and nothing further is said, [124]*124the law presumes that the instrument is made according to the agreement, and that the party to whom it is thus handed over accepts it as a delivery in fulfillment of the agreement between them. But it is not every mere handing over, and retention for a greater or less period of time, which will constitute a full and effectual delivei-y of an instrument. If it is taken by the grantee or other party, merely for the purpose of examination, to see whether it is in accordance with the agreement, it is no delivery, unless the party concludes to retain it after such examination. And so, I apprehend, where a party makes a purchase of land and the agreement is that the vendor is to convey it to the purchaser, by a deed with some special provision in it, and a deed is made and handed over to such purchaser, which conveys the land to another person, and the purchaser receives it without any examination of its contents, understanding and believing that it is a deed made to him and which vests the title in him, and retains it in that belief, until be discovers that it is not such an instrument as he was to have and does not give him the land which he had purchased and paid for, he may return it to the vendor and require one to be made in accordance with the agreement. Ho valid and effectual delivery has been made in such a case. There has been no meeting of minds, which is as essential in this as in any other part of the agreement. Upon the discovery of the mistake or error within a reasonable time and before any other rights have .intervened, founded upon the instrument as made and thus retained, the party receiving it may refuse • to retain it, and may return it and demand one in accordance with the agreement.
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By the Court, Johnson, J.
It is quite immaterial whether this action is to be regarded as strictly in the nature of a bill in equity to remove a cloud upon the title to real estate, or generally in the nature of a bill quia timet, to settle the plaintiff's title to the estate, and establish it securely against all claims which may be brought against it by reason of the destroyed deed. That the defendants are now proceeding to acquire the title under the destroyed instrument, or to put themselves in a situation to assail the plaintiff’s title hereafter, and secure such title to themselves through that deed, is not denied. Indeed they ask for affirmative relief in their own behalf in their answer; which is nothing less than that the plaintiff's conveyance, under which she claims an absolute title to the premises, may be adjudged fraudulent and void and decreed to be canceled and annulled. The whole matter is therefore before the court upon the merits, having been fully tried upon all the questions of fact involved, without objection, and the court should proceed to a determination according to the very right of the case. It is too late, now, to suggest that the case is not properly before the court, for determination upon all the questions litigated between the parties. In either aspect, the case is clearly one of equitable cognizance, and I see no difficulty, upon the facts disclosed by the testimony, in maintaining the [122]*122action upon either or both grounds. The defendants’ answer1 and the aifirihative relief sought by that shows that the action has not been prematurely brought.
The action being maintainable, the jdaintiff’s right to the relief prayed for ' depends, I think, upon the question whether the first deed executed by Vary5 the grantor, and handed to the plaintiff, was delivered, so as to divest Vary of the title, and vest it in the plaintiff) or in her son who was named in the deed as the beneficiary. If it did, the. subsequent destruction of it by the plaintiff and the grantor would not change the title back to the grantor and reinvest him with it. This question, singularly enough, is not discussed or even alluded to by the plaintiff’s counsel) in his points.
If that deed took effect at all, its operation was to vest the title in the beneficiary named, as it was not a trüst authorized by statute, Wo estate, legal or equitable, vested in the plaintiff. (1 R. S. 727, 728, 729, §§ 47, 49, 55.) It would create in him afi estate subject to the condition contained, to wit: That he should pay the plaintiff the stim of $200 annually during her natural life. If this was a valid condition, it would subject the estate to a defeasance or forfeiture in his hands if the condition was not perforined. It was clearly a condition subsequent, and did not prevent the vesting of the estate if the deed was in law delivered, eken should the condition be held to be valid. I incline to the opinion, however) that the condition was not valid, and could never operate to defeat the title) although wholly unperformed; The condition was not in favor of the grantor or his heirs, but in favor of the plaintiff, wholly. It seems to be well settled, upon abundant authority, that a condition in a conveyance can only be reserved for the benefit of the grantor of the estate and his heirs, and that no stranger can take advantage of the breach of a condition, (4 Kent’s Com. 127. Co. Lit. 214 a, 214 b. 2 Greenl. Cruise, 4. Shep. Touch. 120. Craig v. Wellcs, 1 Kern. 323, Nicoll v. The New York and Erie Railroad Co., 2 id. 121.)
[123]*123But even if the condition could be held valid, in this case, it was never broken, or if it was, there was no re-entry on account of such breach -; and until such re-entry b.y the grantor or his heirs, the estate is not forfeited, but remains in the grantee; (See case last cited.) Mere neglect to perform the condition is not sufficient to work a forfeiture. But here the beneficiary and real owner was an infant. The condition was to pay the plaintiff $200 each and every year without any particular day of payment being specified. In such a case, I think; the owner would have the whole of the first year in which to make payment, so that the condition could not be deemed broken until the expiration of the year from the execution and delivery of the deed. The deed was destroyed before the expiration of the first year after its execution. The mere verbal refusal to make the payment; or to assume the obligation, was of no consequence, as the party was an infant at the time, and the plaintiff his only surviving parent. If the first deed ever took effect; therefore, so as to divest the grantor of his title; it vested in Franklin J. Fonda, and he has never been divested of it, and the plaintiff acquired no title or interest whatever by her second deed from the same grantor.
If this is the true state of the case, the plaintiff must not only fail in her action, but the defendants are entitled to the specific relief prayed for by them in their answer.
But I have come to the conclusion; after a careful consideration of the facts found by the referee, and of all the evidence, that the first deed was never delivered so as to take effect, and operate to transfer the title from the grantor therein to the grantee. To constitute a delivery of a deed so that it shall become effectual to transfer title to real estate from one to another, there must be an acceptance by the per*son to whom it is made. Acceptance by the grantee is an essential part of a delivery, in law. Where a deed or other instrument is handed over by the maker to the other party •and retained by such other party, and nothing further is said, [124]*124the law presumes that the instrument is made according to the agreement, and that the party to whom it is thus handed over accepts it as a delivery in fulfillment of the agreement between them. But it is not every mere handing over, and retention for a greater or less period of time, which will constitute a full and effectual delivei-y of an instrument. If it is taken by the grantee or other party, merely for the purpose of examination, to see whether it is in accordance with the agreement, it is no delivery, unless the party concludes to retain it after such examination. And so, I apprehend, where a party makes a purchase of land and the agreement is that the vendor is to convey it to the purchaser, by a deed with some special provision in it, and a deed is made and handed over to such purchaser, which conveys the land to another person, and the purchaser receives it without any examination of its contents, understanding and believing that it is a deed made to him and which vests the title in him, and retains it in that belief, until be discovers that it is not such an instrument as he was to have and does not give him the land which he had purchased and paid for, he may return it to the vendor and require one to be made in accordance with the agreement. Ho valid and effectual delivery has been made in such a case. There has been no meeting of minds, which is as essential in this as in any other part of the agreement. Upon the discovery of the mistake or error within a reasonable time and before any other rights have .intervened, founded upon the instrument as made and thus retained, the party receiving it may refuse • to retain it, and may return it and demand one in accordance with the agreement. The rejection in such a case, where the mistake or misapprehension under which the instrument had been received was genuine, and the delay in the discovery of the mistake or error excusable, would relate back to the original delivery or handing over of the instrument, and constitute a refusal to accept it at that time. There béing no acceptance, no title has passed, and a new instrument conveying accord[125]*125ing to the agreement, would transfer the original title of the vendor. Here, according to the finding of the referee, the direction was by the plaintiff to have the title conveyed to her, with some provision in the deed in favor of her son, then a minor, upon certain conditions to be performed by him.
It was a purchase made by her, in her own right, and with her own means, in which the son had no interest, and could have no voice, and no rights, except such as she might see fit voluntarily to confer. The deed, instead of conveying the property to her in her own right, is, through misapprehension, or design so drawn as to operate as a conveyance of the whole title to the son. But it has been retained by the plaintiff, and never has been delivered to the son or accepted by him. The plaintiff was in no sense his agent, to procure the title for him, and her acceptance and retention of the deed, for the length of time it was so retained, was in no legal sense a delivery of it to the son. He had not received it, nor accepted its provisions, and I think it is clear, under the circumstances, that no title ever vested in him. The plaintiff, and not Vary, the original owner of the premises, was the donor of the interest, whatever it was designed to be, of the son, and had the sole and exclusive right to dictate, and determine, as to its nature and extent. And upon making the discovery that the deed was so drawn as to make her only a nominal grantee, without any title, and effectual only to vest the title in another, such other never having received the conveyance or done any thing by way of ratification or acceptance, the plaintiff, it seems to me, had the clear right to reject it, and have a deed according to the intention and agreement. The only question material to be considered here, is whether under the facts and circumstances of this case, the title as matter of law vested in the plaintiff's son, Franklin J. Fonda, upon the delivery of the first deed to her. It seems to me very clear that it did not. And if it did not, then it still remained in Vary, the original owner, as it was before, subject to the rights of the plaintiff as purchaser. [126]*126By her purchase and payment of the price, she acquired the entire equitable title, and Vary, the vendor, only held the naked legal title without any real interest, in trust for her, and could not convey it to another without her consent. This consent, though apparently given, and presumptively given, for the time being, was never in fact so given. The title, therefore,.did not pass from Vary, the vendor, until the execution and delivery of the second deed, when it vested exclusively in the plaintiff.
[Monroe General Term,
June 4, 1866
There is no question of laches, here, which the defendr ants can he heard to urge against the plaintiff, in neglecting to examine the first deed, and make discovery of its contents. Their claims against Franklin J. Fonda, did not accrue until long after the whole matter was adjusted amicably, and in good faith, between the plaintiff and her vendor and grantor. They gave no credit to the son upon the faith of his ownership of this land, and their claim had no reference whatever, in its inception, to any such fact. As subsequent creditors, their claim rests entirely upon the proposition that, as mat-> ter of strict law, the title to these premises vested in him upon the execution of the first deed, and the delivery of the same to his mother, the plaintiff. As I have come to an o.ppoT site conclusion, if my brethren agree with me, the plaintiff is entitled to the relief prayed for, and the judgment should he affirmed, with costs.
Judgment affirmed.
tyeUes, P. Partem Si/fith and John* son, Justices.]