The Chahcellor :—The writings left in the hands of Livingston, although called by him and the parties escrows, [388]*388were not so in fact. It is essential to an escrow that it be delivered to a third person, to be delivered by him to ^ obligee or grantee, upon the happening of some event or the "“'performance of some condition, from which time it becomes an absolute deed.
This is not the case of a Iona fide purchaser of the legal estate, without notice of a latent equity which is attempted to be set up to defeat his title. James in this case is in no better situation than Blake. He is the assignee of a chose in action, with sufficient notice to put him on inquiry. He has not been injured by any mistakes of the other parties, as he took the assignment to indemnify himself against a pre-existing responsibility. Hnder the assignment from Blake he has all the legal title to the farm which Blake had; and it would be inequitable to compel the representatives of Vanderheyden to take an incumbered farm or a defective title, and look to the responsibility of Blake, who has left the state, and is probably insolvent.
*The complainants dare not even pay off the incumbrances which have been assigned to them, because they see that the lien of Knickerbacker’s judgment would then attach upon the whole farm, as it does now upon the surplus value over and above those incumbrances. Those incumbrances are about three-fourths of the value of the farm, and it will be necessary to foreclose the mortgage and sell on the judgments, or buy off Kniclcerbaoker’s lien, before a good title can be had. This is an expense which at all events ought to be sustained by Blake, and not by the defendants.
But there is also a failure of title as to forty acres of the farm. More than twenty-five years ago, Or. Seymour purchased this forty acres of Andrews, who was in possession [391]*391claiming title, and paid $1,000 for the purchase-money. Seymour went on to the same and died there, leaving his widow in possession with her infant daughter. The widow married Lee, who came on to the farm with her, and after-wards, without any right, sold the forty acres to St. John or Tull, from whom Davis purchased. Ring purchased of Davis, and Blake of Ring. This testimony would be sufficient to enable the daughter of Seymour to recover in ejectment against any one deriving title under Blake. It is not material to inquire whether there is sufficient evidence of the loss of the deed to Seymour. He paid the consideration money, and was entitled to a deed, and under the circumstances it may probably be presumed. But even if the legal title still remains in Andrews, it is out of the complainants, and renders their title to the forty acres equally defective. I am therefore satisfied it would be inequitable and unjust to enforce these bonds and the mortgage against the defendants before a perfect title can be made to the farm, and free from all incumbrances.
If the complainants can satisfy these outstanding claims and clear the premises, they may perhaps even now be entitled to a specific performance of the original agreement of January, 1828; but on this question I have not formed any definite opinion. This bill is not properly framed for such relief in this suit, because no such agreement is set out, but one entirely different. If the complainants intend to avail themselves of that agreement hereafter, they are at liberty to have this bill ‘^dismissed with costs, but without prejudice to their right to file a new bill for that purpose.
But there is one kind of relief which the complainants are entitled to, if they prefer to abandon the contract of January, 1823. The deed and mortgage remaining on the records of the county arc a cloud upon the title: they are therefore entitled to a decree declaring the deed and mortgage void and inoperative; and if they abandon the contract of sale, they will be entitled to an account of the rents [392]
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The Chahcellor :—The writings left in the hands of Livingston, although called by him and the parties escrows, [388]*388were not so in fact. It is essential to an escrow that it be delivered to a third person, to be delivered by him to ^ obligee or grantee, upon the happening of some event or the "“'performance of some condition, from which time it becomes an absolute deed.
This is not the case of a Iona fide purchaser of the legal estate, without notice of a latent equity which is attempted to be set up to defeat his title. James in this case is in no better situation than Blake. He is the assignee of a chose in action, with sufficient notice to put him on inquiry. He has not been injured by any mistakes of the other parties, as he took the assignment to indemnify himself against a pre-existing responsibility. Hnder the assignment from Blake he has all the legal title to the farm which Blake had; and it would be inequitable to compel the representatives of Vanderheyden to take an incumbered farm or a defective title, and look to the responsibility of Blake, who has left the state, and is probably insolvent.
*The complainants dare not even pay off the incumbrances which have been assigned to them, because they see that the lien of Knickerbacker’s judgment would then attach upon the whole farm, as it does now upon the surplus value over and above those incumbrances. Those incumbrances are about three-fourths of the value of the farm, and it will be necessary to foreclose the mortgage and sell on the judgments, or buy off Kniclcerbaoker’s lien, before a good title can be had. This is an expense which at all events ought to be sustained by Blake, and not by the defendants.
But there is also a failure of title as to forty acres of the farm. More than twenty-five years ago, Or. Seymour purchased this forty acres of Andrews, who was in possession [391]*391claiming title, and paid $1,000 for the purchase-money. Seymour went on to the same and died there, leaving his widow in possession with her infant daughter. The widow married Lee, who came on to the farm with her, and after-wards, without any right, sold the forty acres to St. John or Tull, from whom Davis purchased. Ring purchased of Davis, and Blake of Ring. This testimony would be sufficient to enable the daughter of Seymour to recover in ejectment against any one deriving title under Blake. It is not material to inquire whether there is sufficient evidence of the loss of the deed to Seymour. He paid the consideration money, and was entitled to a deed, and under the circumstances it may probably be presumed. But even if the legal title still remains in Andrews, it is out of the complainants, and renders their title to the forty acres equally defective. I am therefore satisfied it would be inequitable and unjust to enforce these bonds and the mortgage against the defendants before a perfect title can be made to the farm, and free from all incumbrances.
If the complainants can satisfy these outstanding claims and clear the premises, they may perhaps even now be entitled to a specific performance of the original agreement of January, 1828; but on this question I have not formed any definite opinion. This bill is not properly framed for such relief in this suit, because no such agreement is set out, but one entirely different. If the complainants intend to avail themselves of that agreement hereafter, they are at liberty to have this bill ‘^dismissed with costs, but without prejudice to their right to file a new bill for that purpose.
But there is one kind of relief which the complainants are entitled to, if they prefer to abandon the contract of January, 1823. The deed and mortgage remaining on the records of the county arc a cloud upon the title: they are therefore entitled to a decree declaring the deed and mortgage void and inoperative; and if they abandon the contract of sale, they will be entitled to an account of the rents [392]*392and profits of the farm while it has been in the possession of Yanderheyden or his tenant, after deducting therefrom the defendant’s costs in this suit to be taxed.
Mersted v. Avery, 4 Paige, 9; Johnson v. Gatlin, 2 John. Oh. 248; Oilman v. Ghwrch, 15 Wen. 656 ; Johnson v. Baker, 4 Bam. & Aid. 440; 4 Kent. 454. Such delivery must be to a stranger, and not to one of the parties. 10 Smeed. & M. 9. The presence nor express assent of the grantee is not necessary. Merrils v. Swift, 18 Conn. 251; see also Tompkins v. Wheeler, 16 Peters, 106; Wesson v. Stephens, 2 Ired. Eq. 551. Such assent will be presumed, from the beneficial interest of the grantee in the deed, unless a dissent is proved. Lady Superior, dec. v. McNamara, 3 Barb. Oh. 315.
“ An escrow," says Chancellor Kent, “is only a conditional delivery to a stranger, who is to keep the deed until certain conditions are performed, when he is to deliver it to the grantee. Until the conditions are satisfied the estate does not pass, but remains in the grantor. It becomes absolute from the time of the second delivery: but this general rule does not apply when justice requires a resort to fiction. The relation back to the first delivery, so as to give the deed effect from that time, is allowed in cases of necessity, to avoid injury to the operation of the deed from events happening between the first and second delivery. Thus, if the grantor was a feme sole when she executed the deed, and she married before it ceases to be an escrow by the second delivery." 4 Kent. 454.