Stephens v. Rinehart

The opinion of the court was delivered, by Sharswood, J. — That the delivery of the deed in controversy after the death of the grantor, took effect by relation to the first delivery, seems a point very well settled by the decided cases: Morris v. Stephens, 4 P. F. Smith 20. In Foster v. Mansfield, 3 Metcalf 414, C. J. Shaw said: “ Where the future delivery is to depend upon the payment of money or the performance of some other condition, it will be deemed an escrow. Where it is merely to await the lapse of time or the happening of some contingency, and not the performance of any condition, it will be deemed the grantor’s deed presently. Still it will not take effect as a deed, until the second delivery; but when thus delivered it will take effect by relation from the first delivery.” He adds: “As the estate did not effectually pass till the second delivery, if that second delivery had been prevented, it would probably have been held that it was wholly inoperative.” In Belden v. Carter, 4 Day [441] 66, A. having signed, sealed and acknowledged a deed conveying a tract of land to B., took up the deed in the absence of B., and said to C.: “ Take this deed, and keep it; if I never call for it, deliver it to B. after my death: if I call for it, deliver it up to me.” C. took the deed. A. died soon afterwards, having never called for it, and then C. delivered it over to B.: it was held that this was the deed of A. presently; that C. held it as trustee for B.: that the title became consummate in B. by the death of A., and that the deed took effect by relation from the time of the first delivery. To the same effect is Stewart v. Stewart, 5 Conn. 317, and the authorities which are cited in these cases fully sustain the rule laid down. If the object of Andrew Lantz, Sr., in making the deed here in question, was to prevent his intended second wife from obtaining by the marriage any dower in the land, it was necessary in order to secure that result, that the deed should take effect presently, so that if the first delivery had been expressly as an escrow, it would in order to effectuate the intention have been held to relate. In Perkins, sect. 9, a case in the Year Books is referred to where a single woman made a deed, which she delivered to a third person as an escrow, to be delivered in case the grantor returned from Borne, and then the woman married, and afterwards the deed was delivered: it was decided that the estate passed at the time of the first delivery and the marital right of the husband never attached. So Chancellor Kent decided in Frost v. Beekman, 1 Johns. Ch. 288, that a deed delivered as an escrow is operative only from the time of the performance of the condition, and the actual delivery to the grantor, except in cases where a relation back to the first delivery is necessary to give effect to the deed or to the intermediate conveyances of the grantee. It follows that the delivery of the deed of Andrew Lantz, Sr., is to be considered as operative from its date, and the ruling of the learned judge which excluded evidence of the declarations of Andrew Lantz, Sr., except so far as they went to prove that before his death he had countermanded the delivery of the deed, was entirely correct. Nor can it be pretended that the declarations of Henry Lantz, Andrew Lantz, Jr., or J. L. McConnell, were competent without some previous evidence of a fraud perpetrated by them on Andrew Lantz, Sr., or of a conspiracy by them to perpetrate such a fraud, and of this there was none. The answers of the learned judge below to the several points which are complained of in the remaining assignments of error, conform to the opinion and decision of this court when this case was here before: Huss v. Morris, 13 P. F. Smith 367. Judgment affirmed.