Easton v. Driscoll

Tillinghast, J. The defendants’ second plea, after craving oyer of the bond sued on, and reciting the conditions thereof, alleges that the defendants ought not to be charged thereon because the writing obligatory in said declaration mentioned was delivered by them to the plaintiff as an escrow, to be kept by him on the special condition that if Jeremiah J. Lynch, one of the defendants, should within five days then next following, sue out a writ of replevin against the plaintiff for the goods and chattels mentioned in the condition of said writing obligatory, then, and in that case the same should be immediately discharged, annulled and held for nothing, and be returned and re-delivered to the said defendants; but that in default of the suing out of said writ of replevin by said Lynch within said time, then the said writing obligatory should stand and remain in full force. And the defendants further say that within the space of said fivb days from the making and delivery of the said writing obligatory as an escrow to the plaintiff for the purpose aforesaid, the said Lynch did sue out the said writ of replevin against said Easton, constable ; whereby the said writing obligatory, became and was wholly discharged, annulled and vacated, and so the said defendants say that the same is not their deed. *320 ■The defendants’ third plea, after craving oyer as aforesaid, and setting out the conditions of said writing obligatory, alleges that they ought not to be charged thereon, because the plaintiff did not in fact make ’any levy of the writ of attachment in the declaration mentioned, upon the goods and chattels described in the condition of said writing obligatory or upon any part thereof." To these two pleas the plaintiff has filed a demurrer as follows : “ As to the second and third of the defendants’ aforesaid pleas, the plaintiff says, (predudi non) because, he says, the said pleas are both insufficient in law to exonerate the said defendants, and this the plaintiff is ready to verify. Wherefore, &c.” Signed by his attorneys. Although quite defective in form, we will treat this as a general demurrer to said pleas. 1 Chitty on Pleading, *611; Leaves v. Bernard, 5 Mod. 131; Earl of Leicester v. Heydon, 1 Plowd. 384, 400. We think the first plea is bad. It sets up that the bond in suit was delivered to the plaintiff as an escrow, as aforesaid, and that the condition upon which it was delivered has been performed. “An escrow,” as well defined in 6 Amer. & Eng. Encyc. Law, 851, “is an obligatory writing, usually, but not necessai’ily in the form of a deed, delivered by the party executing it to a third person, to be held by him until the performance of a specified condition by the obligee, or the happening of a certain contingency, and then to be delivered by the depository to the obligee, when it becomes of full force and effect.” It cannot be delivered to the grantee or obligee as an escrow, to take effect on a condition not appearing on its face, but the delivery must be made to a stranger, one not a party, otherwise it will become absolute at law, and parol evidence of conditions qualifying it is inadmissible. As stated in Sheppard’s Touchstone, 59, “ If I seal my deed, and deliver it to the party himself, to whom it is made, as an escrow upon certain conditions,, etc., in this case, let the form of words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently. ” See also *321 Fairbanks v. Metcalf, 8 Mass. 230; Arnold v. Patrick, 6 Paige, 310; Cocks v. Barker, 49 N. Y. 107, 110; Black v. Shreve, 13 N. J. Eq. 455; Pawling v. United States, 4 Cranch, 219; Truman v. McCollum, 20 Wisc. 360. Patrick J. Calvin & Charles A. Ives, for plaintiff. Frank F. Nolan, for defendants. The third idea is also bad. It alleges the fact of the making of the attachment, by the plaintiff constable, of certain goods and chattels set out to him as the goods and chattels of the defendant Driscoll; of the subsequent tender and delivery to the plaintiff, of the bond in suit, and also of the surrender thereupon, of said goods and chattels, so attached, to the said defendant. In the face of these allegations it then proceeds to state that said plaintiff did not in fact make any levy of the writ of attachment, upon said goods and chattels or upon any part thereof. This the defendants cannot be allowed to do. Por it is a well settled rule of law that where a distinct statement of fact is made in the recital of a bond, it is not competent for the party bound, to deny the recital, in an action upon the instrument and between the parties to it. Murfree on Official Bonds, §' 133. And where parties intervene, as they have done in this case, and obtain the release and surrender of the property attached, by giving a statutory bond to the officer, they are certainly estopped from denying the fact that said property has been attached. Indeed, they have judicially admitted it by the act of giving said bond. Frost & Co. v. White, 14 La. Ann. 140. See also 1 Wade on Attachment, § 190; Smith v. Fargo, 57 Cal. 157; Bowers v. Beck, 2 Nevada, 139; 7 Lawson’s Rights, Remedies & Practice, § 3579, and cases cited in note 6. Demurrers sustained and pleas overruled.