Gregory, C. J.
Underwood filed his complaint against Patterson and wife, Stalcup and Bird, for the' specific 'performance of-a contract for the conveyance of real estate. It is averred in the complaint that Underwood purchased of Patterson and wife lots numbers 19 and 20 in the town of Valene, Orange county, Indiana, for $504, and paid $300 thereof, and took a receipt therefor, as follows: “ Received of L. Underwood $300 cash, on payment on house.” (Sig’d) “ John J. Patterson. Valene, March 29,1866.” ■ That at the time of the purchase, the legal title to the lots was in Jesse L. Bell; that Underwood tendered to Patterson and wife the $204, and demanded a deed; that Bell and wife, at the request of Patterson and wife, executed and acknowledged a deed of conveyance in fee for the lots to Underwood, and handed it to Patterson; that some difficulty occurred between the parties about a pile of manure on the lots, and Patterson tore the deed in three pieces, and threw it on the floor; that Underwood picked up the pieces and produced the same, and made the deed a part of his complaint. That afterwards Patterson and ivife sold the lots to Stalcnp and Bird, who had full notice of Underwood’s equity. Patterson [608] demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. The defendants answered, 1. By the general denial. . 2. That Jesse L. Bell had on the lots a pile of manure, valued at $15, piled up in a rail pen thereon, which he reserved in the sale of the lots to Patterson and wife, and after the alleged sale by Patterson and wife to Underwood, the latter claimed the manure by reason of his purchase of the lots, and refused to take a deed unless the manure was given up to him. That the deed mentioned in the complaint was made by Bell and wife, upon the express understanding and agreement between Bell and wife and Pcdterson and wife, that it was to be delivered to Underwood provided he would relinquish his claim to the manure, and not otherwise. That when so tendered to him, in accordance with said agreement, he refused to accept it unless the manure was given up to' him. That Patterson then announced to Underwood that he would abandon his contract of sale of the lots to the latter, and in his presence tore up the deed and threw down the pieces, which were picked up and attached together by the plaintiff. That Patterson tendered back to Underwood the $300. Underwood demurred to the second paragraph of the answer. The demurrer was sustained. Trial by the court. Binding for the plaintiff. Motion for a new trial overruled, and final decree. The evidence is before us.
Underwood purchased the lots of Patterson and wife on the 29th of March, 1866, for $500, and paid down $300, and agreed to pay the balance within ten days. Patterson was in possession at the time, but Bell had the legal title. By the terms of the contract of sale, Patterson was to cause Bell to convey the lots'to Underwood. Patterson executed and delivered to Underwood the receipt set forth in the complaint. At the request of Patterson and wife, Bell and wife signed and acknowledged a deed of conveyance in fee for the lots to Underioood, and placed the • same in the hands of Patterson for Underwood. At the time of the [609] sale to Underwood, there was on the lots, in pens, a pile of manure, which Underwood claimed under his purchase. Bell claimed that he had reserved the manure in his contract with Patterson and wife. And before he signed and placed the deed in Patterson’s hands, he had removed the manure; when he placed the deed in Patterson’s possession, he told him not to deliver it to Underwood until the latter relinquished his claim to the manure. Before the expiration of the ten days within which Underwood was to pay the balance of the purchase money, Bell, Patterson and Underwood met. Patterson told Underwood that he had his deed, and read it to him. The latter said it was all. right, and offered to pay the money, but the former told him he could not have the deed until he relinquished his claim to the manure. Underwood said he would settle that thereafter, and refused to relinquish his claim to the manure. Thereupon Patterson tore up the deed and left. Underwood gathered up the pieces and put them.together. -The next day, and within the ten days, Underwood offered to relinquish his claim to the manure, and take the deed on the terms offered by Bell; Patterson was willing to do this, but his wife objected. At the time Patterson tore up the deed, he told Underwood that he had some money for him. The latter replied that he owed him nothing. Underwood tendered the balance of the purchase money within the time agreed on, and demanded the deed, and brought the money into court.
I think the court below committed no error in overruling the demurrer to the complaint. The complaint shows a conveyance by Bell and wife, at the request of Patterson and wife, to Underwood for the lots, in fulfillment of a parol contract of sale. This was sufficient to take the case out of the statute of frauds.
The allegation in the complaint that the deed was executed, includes delivery, as delivery is an incident essential to the due execution of a deed. 4 Kent’s Com. 454. The [610] averment that the deed was handed to Patterson does not qualify or explain the averment of execution. If both parties be present, and the usual'formalities of execution take place, and the contract is, to all appearances, consummated, without any conditions or qualifications annexed,' it is a complete and valid deed, notwithstanding it be - left in the custody of the grantor. 4 Kent’s Com. 455-6. But Elliott and Ray, J. J., do not concur in this view of the law, and the question is not decided.
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Gregory, C. J.
Underwood filed his complaint against Patterson and wife, Stalcup and Bird, for the' specific 'performance of-a contract for the conveyance of real estate. It is averred in the complaint that Underwood purchased of Patterson and wife lots numbers 19 and 20 in the town of Valene, Orange county, Indiana, for $504, and paid $300 thereof, and took a receipt therefor, as follows: “ Received of L. Underwood $300 cash, on payment on house.” (Sig’d) “ John J. Patterson. Valene, March 29,1866.” ■ That at the time of the purchase, the legal title to the lots was in Jesse L. Bell; that Underwood tendered to Patterson and wife the $204, and demanded a deed; that Bell and wife, at the request of Patterson and wife, executed and acknowledged a deed of conveyance in fee for the lots to Underwood, and handed it to Patterson; that some difficulty occurred between the parties about a pile of manure on the lots, and Patterson tore the deed in three pieces, and threw it on the floor; that Underwood picked up the pieces and produced the same, and made the deed a part of his complaint. That afterwards Patterson and ivife sold the lots to Stalcnp and Bird, who had full notice of Underwood’s equity. Patterson [608] demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. The defendants answered, 1. By the general denial. . 2. That Jesse L. Bell had on the lots a pile of manure, valued at $15, piled up in a rail pen thereon, which he reserved in the sale of the lots to Patterson and wife, and after the alleged sale by Patterson and wife to Underwood, the latter claimed the manure by reason of his purchase of the lots, and refused to take a deed unless the manure was given up to him. That the deed mentioned in the complaint was made by Bell and wife, upon the express understanding and agreement between Bell and wife and Pcdterson and wife, that it was to be delivered to Underwood provided he would relinquish his claim to the manure, and not otherwise. That when so tendered to him, in accordance with said agreement, he refused to accept it unless the manure was given up to' him. That Patterson then announced to Underwood that he would abandon his contract of sale of the lots to the latter, and in his presence tore up the deed and threw down the pieces, which were picked up and attached together by the plaintiff. That Patterson tendered back to Underwood the $300. Underwood demurred to the second paragraph of the answer. The demurrer was sustained. Trial by the court. Binding for the plaintiff. Motion for a new trial overruled, and final decree. The evidence is before us.
Underwood purchased the lots of Patterson and wife on the 29th of March, 1866, for $500, and paid down $300, and agreed to pay the balance within ten days. Patterson was in possession at the time, but Bell had the legal title. By the terms of the contract of sale, Patterson was to cause Bell to convey the lots'to Underwood. Patterson executed and delivered to Underwood the receipt set forth in the complaint. At the request of Patterson and wife, Bell and wife signed and acknowledged a deed of conveyance in fee for the lots to Underioood, and placed the • same in the hands of Patterson for Underwood. At the time of the [609] sale to Underwood, there was on the lots, in pens, a pile of manure, which Underwood claimed under his purchase. Bell claimed that he had reserved the manure in his contract with Patterson and wife. And before he signed and placed the deed in Patterson’s hands, he had removed the manure; when he placed the deed in Patterson’s possession, he told him not to deliver it to Underwood until the latter relinquished his claim to the manure. Before the expiration of the ten days within which Underwood was to pay the balance of the purchase money, Bell, Patterson and Underwood met. Patterson told Underwood that he had his deed, and read it to him. The latter said it was all. right, and offered to pay the money, but the former told him he could not have the deed until he relinquished his claim to the manure. Underwood said he would settle that thereafter, and refused to relinquish his claim to the manure. Thereupon Patterson tore up the deed and left. Underwood gathered up the pieces and put them.together. -The next day, and within the ten days, Underwood offered to relinquish his claim to the manure, and take the deed on the terms offered by Bell; Patterson was willing to do this, but his wife objected. At the time Patterson tore up the deed, he told Underwood that he had some money for him. The latter replied that he owed him nothing. Underwood tendered the balance of the purchase money within the time agreed on, and demanded the deed, and brought the money into court.
I think the court below committed no error in overruling the demurrer to the complaint. The complaint shows a conveyance by Bell and wife, at the request of Patterson and wife, to Underwood for the lots, in fulfillment of a parol contract of sale. This was sufficient to take the case out of the statute of frauds.
The allegation in the complaint that the deed was executed, includes delivery, as delivery is an incident essential to the due execution of a deed. 4 Kent’s Com. 454. The [610] averment that the deed was handed to Patterson does not qualify or explain the averment of execution. If both parties be present, and the usual'formalities of execution take place, and the contract is, to all appearances, consummated, without any conditions or qualifications annexed,' it is a complete and valid deed, notwithstanding it be - left in the custody of the grantor. 4 Kent’s Com. 455-6. But Elliott and Ray, J. J., do not concur in this view of the law, and the question is not decided.
There is nothing in the second paragraph of the answer which is not embraced' by the general denial. The appellants relied below on the statute of frauds. The receipt is not a sufficient memorandum in writing to take the case out of the statute. It contains no promise to convey. There was no note or memorandum, therefore, in writing, of the contract. The case turns, however, upon the question whether the deed from Bell to Underwood was delivered to Patterson as an escrow ? At the time the division of this court was certified, the'writer of this was of the opinion that it- was so delivered; but upon mature consideration, the court is now satisfied that this position cannot be maintained. Blackstone,íii his commentaries, says: “A delivery may be either absolute, that is, to the party or grantee himself, or to a third person, to hold till some conditions be performed on the part of the grantee, in which last case it is not delivered as a deed, but as ah escrow, that is, as a scrowl or writing, which is. not to take effect as a deed until the conditions be performed, and then it is a deed to all intents and purposes.” Vol. 2, p. 307. If this writing, in the hands of Patterson, was an escrow, then, upon the performance by Underwood of the condition, it musthave become effective to all intents and purposes; but Underwood was not entitled to its possession until he paid Patterson the balance of the purchase money. Bell, then, only placed Patterson in a condition to comply with his contract with Underwood, and before such compliance Patterson tore up the writing, and refused to perform his contract, leaving Underwood to his [611] remedy on Ms parol contract, wMch we have seen was within the statute of frauds. The court below erred in overruling the appellants’ motion for a new trial.
L. Q. $ G. A. JDe Bruler, A. M. Black and F. Wilson, for appellants. •
. A. J. Simpson, for appellee.
The judgment is reversed, with costs, and the cause remanded to said court, with directions to grant a new trial, and for further proceedings.