Whitsell v. . Mebane

Dick, J. The only question presented in this case, is, whether the bond declared on was properly delivered. To determine this question, the intention of the obligor must be ascertained from the facts attending the transaction. The defendant signed the bond as surety, and placed it in the hands of Barnhart, to be held until certain conditions precedent were performed, and then to be delivered to the obligee. At the time of this agreement, and in the presence ■of the plaintiffs intestate (the obligee,) the defendant expressly instructed Barnhart u not to deliver said paper writing to plaintiff’s intestate until he, the defendant, should notify him of the performance of said conditions.” This made the bond an escrow, and constituted the depository an agent of the defendant: Touchstone, 59; Johnson v. Baker, 4 B. & Ald. 440. The duty of the agent was to keep the bond until notified that said conditions had been performed. 'The defendant never departed with the control of the bond by giving such instructions, and the delivery of the agent was invalid: Phillips v. Houston, 5. Jon. 302. The authority vested in the agent, was a naked power, and as he exceeded it, his act was entirely void: 2 Bouv. Inst. 335. It was insisted by plaintiff’s counsel in this Court, that it was the duty of the defendant to show that the conditions precedent had not been performed, as the possession of the *348 bond by the plaintiff was prima facie evidence of delivery.. Snob is not tbe true rule of evidence. Tbe burden of proof of tbe formal execution of a deed, is» upon tbe person wbo claims under it, and be must aver and prove tbe performance of conditions precedent. There is error in tbe rulings of bis Honor, and there must be a vemre de novo. Let this be certified. Pee Curiam. ■ Venire de novo..