Mr. Justice Breese
delivered the opinion of the Court:
This was an action of assumpsit brought to the Superior Court" of the city of Chicago by the appellees against the appellants, on the common counts for the' use and occupation of certain lots in that city. The defendants pleaded the general issue and nul tiel corporation. There was a trial by jury, and verdict finding the issues for the plaintiff, and assessing damages against Philip J. Price, impleaded with David Price, who was not served with process. A motion for a new trial was made and overruled, and exceptions taken. Judgment was entered on the verdict, and the record brought here by appeal.
•i There was much testimony heard as to the value of the use of these lots for a coal yard, and averaging the testimony of the witnesses on both sides, the jury would have been warranted in finding more than they did find. They certainly found less than they might have found from the testimony.
The principal point, however, which is made in the case is, as to the right of the plaintiffs below to recover at all for use and occupation. Of this we think there can be no doubt. By express agreement, when the plaintiffs purchased the lots of the former owner, under whom the defendant held as tenant by the year, it was agreed and understood, if the plaintiffs consummated the trade by delivering the bonds and mortgages by the fall of 1860, the deeds they had executed on and prior to the first day of May, 1860, and placed in the hands of the attorney and solicitor of the plaintiffs, were to take effect and be in force on the first day of May, 1860. The defendant insists that the delivery of these deeds to the solicitor of the company, was, in effect, the same as a delivery to any third person not connected with the company; that they were delivered to a stranger, and were, therefore, escrows; and being so, the title to the lots remained with the grantors, subject to be transferred on the delivery of the bonds and mortgages. It is generally true, and is the old doctrine of the books, that if a deed is delivered to a stranger to be delivered to the grantee, on the performance by him of certain conditions, and they are fully performed, and the deed delivered, that the deed takes effect from the second delivery, and to be considered the deed of the party from that time.
This rule, it is said, does not apply, where justice requires a resort to fiction. 4 Kent’s Com. 454.
The instances usually put are when the grantor, after the deposit of the deed as an escrow, dies, or becomes insane, or, if a feme sole, marries before the grantee has performed the conditions, in such cases the law will make the second delivery relate back to the time of the deposit of the escrow. 1 Shep. Touch. 123. What effect the agreement of the parties should have upon the time of the delivery is not there discussed, nor is it said these are the only instances in which there shall be this relation back.
The case of Lessee of Shirley v. Ayres, 14 Ohio, 307, was an ejectment, where it was held a deed delivered as an escrow should take effect on its first delivery, on the performance of the condition, if it was necessary to protect the grantee, or those claiming under him, against intervening rights.
The case of Beekman v. Frost, 18 Johns. 543, in the Court of Errors, holds the same doctrine. A very strong case is to be found in 9 Mass. 307, Hatch et al. v Hatch et al., where the court held that a writing delivered to a stranger for the use and benefit of the grantee, to have effect after a certain event, or the performance of some condition, may be delivered either as a deed or as an escrow. The distinction, however, the court say, being almost entirely nominal when we consider the rules of decision which have been resorted to, for the purpose of effectuating the intentions of the grantor or obligor in some cases of necessity. If delivered as an escrow, and not in name as a deed, it will, nevertheless, be regarded and construed as a deed from the first delivery, as soon as the event happens, or the consideration is performed upon which the effect had been suspended, if this construction should be then necessary in furtherance of the lawful intentions of the parties.
The case of Hall v. Harris, 5 Ired. Eq. R. 303, is to the same effect.
. The question in this case was, whether a deed took effect on the second day of March, the date of its execution, or on the tenth, the day on which full payment for the land was made. The trade was made on the second of March, on which day part of the price was paid, and the vendor was to make a deed and hand it to one Morgan, to be by him handed to the vendee when he paid the price. On that day the vendor made the deed and handed it to Morgan. Afterwards, on the tenth of March, the vendee paid Morgan the balance due and received the deed. The purpose, the 'court say, for which the deed was delivered to a third party instead of being delivered directly to the plaintiff, was merely to secure the payment of the price. When that was paid the plaintiff had a right to the deed. The purpose for which it was put into the hands of a third person being accomplished, the plaintiff then held the deed in the same manner he would have held it, if it had been delivered to him in the first instance. This was the intention, and we can see no good reason why the parties should not be allowed to effect their end in this way. Though the plaintiff might have avoided the purchase, his rights cannot be affected by that fact.
The court remarks, if the vendor had died after the delivery to the third person, and before the payment, the vendee, upon making the payment, would have been entitled to the deed, and it must have taken effect from the first delivery, or it could not have taken effect at all. The intention was, it should be the deed of the vendor from the time it was delivered to the third person, provided the condition was complied with. If this intention is bona fide, and not a contrivance to interfere with the right of creditors, the deed must be allowed to take effect. The court conclude by saying, we are satisfied from principle and from a consideration of the authorities, that when a paper is signed and sealed and handed to a'third person to be handed to another, upon a condition which is after-wards complied with, the paper becomes a deed by the act of parting with the possession, and takes effect presently, without reference to the precise words used, unless it clearly appears to be the intention that it should not then become a deed.
In the case before us the proof was, that the deeds were delivered, as deeds, to the solicitor of the company, with the understanding, when the bonds and mortgages of the railroad company to be given in payment of the lota, and which had to be executed in a distant State, were returned from there, the deeds were to take effect as of May 1, 1860; and if the bonds were not returned, the deeds were not to take effect at all; that the bonds were not returned until the fall of 1860, and that he, the witness, should not have delivered or recorded the deeds until the bonds came; that the bonds and mortgages are dated and bear interest from May 1, 1860, and interest had been paid on them from that date.
It is a case quite like the case of Hatch v. Hatch, decided by the Supreme Court of Massachusetts, and the case in Iredell decided by the Supreme Court of North Carolina.
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Mr. Justice Breese
delivered the opinion of the Court:
This was an action of assumpsit brought to the Superior Court" of the city of Chicago by the appellees against the appellants, on the common counts for the' use and occupation of certain lots in that city. The defendants pleaded the general issue and nul tiel corporation. There was a trial by jury, and verdict finding the issues for the plaintiff, and assessing damages against Philip J. Price, impleaded with David Price, who was not served with process. A motion for a new trial was made and overruled, and exceptions taken. Judgment was entered on the verdict, and the record brought here by appeal.
•i There was much testimony heard as to the value of the use of these lots for a coal yard, and averaging the testimony of the witnesses on both sides, the jury would have been warranted in finding more than they did find. They certainly found less than they might have found from the testimony.
The principal point, however, which is made in the case is, as to the right of the plaintiffs below to recover at all for use and occupation. Of this we think there can be no doubt. By express agreement, when the plaintiffs purchased the lots of the former owner, under whom the defendant held as tenant by the year, it was agreed and understood, if the plaintiffs consummated the trade by delivering the bonds and mortgages by the fall of 1860, the deeds they had executed on and prior to the first day of May, 1860, and placed in the hands of the attorney and solicitor of the plaintiffs, were to take effect and be in force on the first day of May, 1860. The defendant insists that the delivery of these deeds to the solicitor of the company, was, in effect, the same as a delivery to any third person not connected with the company; that they were delivered to a stranger, and were, therefore, escrows; and being so, the title to the lots remained with the grantors, subject to be transferred on the delivery of the bonds and mortgages. It is generally true, and is the old doctrine of the books, that if a deed is delivered to a stranger to be delivered to the grantee, on the performance by him of certain conditions, and they are fully performed, and the deed delivered, that the deed takes effect from the second delivery, and to be considered the deed of the party from that time.
This rule, it is said, does not apply, where justice requires a resort to fiction. 4 Kent’s Com. 454.
The instances usually put are when the grantor, after the deposit of the deed as an escrow, dies, or becomes insane, or, if a feme sole, marries before the grantee has performed the conditions, in such cases the law will make the second delivery relate back to the time of the deposit of the escrow. 1 Shep. Touch. 123. What effect the agreement of the parties should have upon the time of the delivery is not there discussed, nor is it said these are the only instances in which there shall be this relation back.
The case of Lessee of Shirley v. Ayres, 14 Ohio, 307, was an ejectment, where it was held a deed delivered as an escrow should take effect on its first delivery, on the performance of the condition, if it was necessary to protect the grantee, or those claiming under him, against intervening rights.
The case of Beekman v. Frost, 18 Johns. 543, in the Court of Errors, holds the same doctrine. A very strong case is to be found in 9 Mass. 307, Hatch et al. v Hatch et al., where the court held that a writing delivered to a stranger for the use and benefit of the grantee, to have effect after a certain event, or the performance of some condition, may be delivered either as a deed or as an escrow. The distinction, however, the court say, being almost entirely nominal when we consider the rules of decision which have been resorted to, for the purpose of effectuating the intentions of the grantor or obligor in some cases of necessity. If delivered as an escrow, and not in name as a deed, it will, nevertheless, be regarded and construed as a deed from the first delivery, as soon as the event happens, or the consideration is performed upon which the effect had been suspended, if this construction should be then necessary in furtherance of the lawful intentions of the parties.
The case of Hall v. Harris, 5 Ired. Eq. R. 303, is to the same effect.
. The question in this case was, whether a deed took effect on the second day of March, the date of its execution, or on the tenth, the day on which full payment for the land was made. The trade was made on the second of March, on which day part of the price was paid, and the vendor was to make a deed and hand it to one Morgan, to be by him handed to the vendee when he paid the price. On that day the vendor made the deed and handed it to Morgan. Afterwards, on the tenth of March, the vendee paid Morgan the balance due and received the deed. The purpose, the 'court say, for which the deed was delivered to a third party instead of being delivered directly to the plaintiff, was merely to secure the payment of the price. When that was paid the plaintiff had a right to the deed. The purpose for which it was put into the hands of a third person being accomplished, the plaintiff then held the deed in the same manner he would have held it, if it had been delivered to him in the first instance. This was the intention, and we can see no good reason why the parties should not be allowed to effect their end in this way. Though the plaintiff might have avoided the purchase, his rights cannot be affected by that fact.
The court remarks, if the vendor had died after the delivery to the third person, and before the payment, the vendee, upon making the payment, would have been entitled to the deed, and it must have taken effect from the first delivery, or it could not have taken effect at all. The intention was, it should be the deed of the vendor from the time it was delivered to the third person, provided the condition was complied with. If this intention is bona fide, and not a contrivance to interfere with the right of creditors, the deed must be allowed to take effect. The court conclude by saying, we are satisfied from principle and from a consideration of the authorities, that when a paper is signed and sealed and handed to a'third person to be handed to another, upon a condition which is after-wards complied with, the paper becomes a deed by the act of parting with the possession, and takes effect presently, without reference to the precise words used, unless it clearly appears to be the intention that it should not then become a deed.
In the case before us the proof was, that the deeds were delivered, as deeds, to the solicitor of the company, with the understanding, when the bonds and mortgages of the railroad company to be given in payment of the lota, and which had to be executed in a distant State, were returned from there, the deeds were to take effect as of May 1, 1860; and if the bonds were not returned, the deeds were not to take effect at all; that the bonds were not returned until the fall of 1860, and that he, the witness, should not have delivered or recorded the deeds until the bonds came; that the bonds and mortgages are dated and bear interest from May 1, 1860, and interest had been paid on them from that date.
It is a case quite like the case of Hatch v. Hatch, decided by the Supreme Court of Massachusetts, and the case in Iredell decided by the Supreme Court of North Carolina.
In all such cases the intention of the parties is to be considered, and it seems quite manifest these parties intended those deeds should have effect from the day of their execution, if the conditions were performed; and they were fully performed.
But were these deeds delivered to a stranger, so as to constitute an escrow ? The proof is, they were delivered to the solicitor of the company. How, since a corporation can only act through its officers and agents, a delivery of a deed to one of its officers "would be a delivery to the company, and therefore would take effect immediately. Foley v. Cowgill, 5 Blackf. 20; Worrall v. Munn et al., 1 Seld. (N. Y.), 229.
The case cited by appellant from 4 Fla. 359, Southern Life Ins. and Trust Co. v. Cole, holds, that a delivery to an officer or servant of a corporation, is delivery to the corporation, with the addition that such delivery is for the use and benefit of the corporation, and with an intent to pass an absolute property or interest in the deed delivered. That court did not think there was such a personal identity between the corporation and its officers, that a deed may not be placed in the hands of the latter as an escrow until the performance of some condition. The court, however, in that case refused to permit the deed to take effect in favor of the company from its date, because it would do wrong and injustice to the rights of other parties.
The question, of intention in the case before us was left to the jury, and they have found the deeds, by agreement of the parties, were to take effect on the first day of May, 1860, and it is not pretended, any rights or interests have intervened to be injuriously affected by such an agreement. Justice is done by it, because the plaintiffs have paid the interest on these bonds and mortgages from the first day of May, 1860, at which date, all claim and interest of their vendors ceased, and so ceasing the plaintiffs became entitled to the rents and profits of the tenancy, then existing and theretofore created. A suit brought by these vendors, for the rent of these premises, could not, under the facts proved, be maintained. They sold the premises on a condition which has been fully performed with an express agreement, when performed, them deed should take effect on the first day of May. They could not afterwards retract this, nor could any other person, except, perhaps, creditors, gainsay the validity of such an agreement in the absence of fraud. We are inclined to think the delivery of these deeds, under the circumstances, was absolute in the first instance.
As to the instructions, they have received careful consideration. There were two given on behalf of the plaintiffs, fully and clearly stating the law on the evidence. McKinney v. Peck, 28 Ill. 174; 4 Kent’s Com. 112.
The views we have presented dispose of the first and second instructions asked by the defendant. The deeds took effect from the first day of May, 1860. The condition was not, on the first delivering of the deeds, that they should not then “take effect,” biit that they should not be recorded, or be made use of, until the bonds and mortgages were returned from Pittsburgh. As to the third instruction, it seems not applicable to the case, as the evidence shows that the agreement made by defendant with Cobb related as well to the year 1860 as to 1859. The defendant would be considered as holding over in 1861 on the terms agreed upon with Cobb.
The modification of the fourth and fifth instructions of defendant were correct. There was no such eviction, or anything equivalent” to it, as would take away the landlord’s right to rent for the part actually occupied. 'If, as the court said, it was the understanding that the railroad track might he put across the lots, in the event the company purchased them, and defendant held under that understanding, the putting down the track after the purchase would not amount to an eviction. Forcible expulsion was not necessary, but any act done in violation of the rights of the tenant, without his consent, might amount to an eviction.
The instructions, eight in number, given by the court for the defendant, placed his case in an attitude as favorable as the facts would warrant.
The plaintiffs’ instructions make no point as to the time their title accrued, and those of the defendant limit the right of the recovery to the time subsequent to the execution of the bonds and mortgages, and the deeds placed upon record, passing by entirely, the agreement of the parties as to the time when the deeds should take effect.
The court then did not, in any of the instructions given, or by indirection in refusing other instructions, decide that the title to land can be carried back by parol. That point was not made in the court below, and is not, therefore, determined by the instructions. One of the deeds was not acknowledged until the 14th of May, but it was executed on the first. Fío point, however, was made on that.
Perceiving no error in the record, the judgment must be affirmed.
Judgment affirmed. V