Van Amringe v. Morton

[387] The opinion of the Court was delivered by Rogers, J. — It is one of the essential requisites of a good deed, that it be delivered by the party himself, or his certain attorney. A deed takes effect from this tradition or delivery; and if it wants delivery, it is void ab initio. 2 Bl. Com. 308. 1 Shep. T. 57. The evidence tended to show, that the deed of Morton to Glenn, under which the plaintiff claimed title, was never delivered either by Morton or his authorised attorney. “ Delivery is either actual, i. e. by doing something and saying nothing; or, also verbal, i. e. by saying something and doing nothing; or it may be, by both: .and either of them may make a good delivery, and a perfect deed. But by one or both these means, it must be made; for otherwise albeit it be never so well sealed and written, yet is the deed of no force. And though the party, to whom it is made, take it to himself, or happen to get it into his hands, yet will it do him no good, nor him that made it, any hurt, until it be delivered. And as proof of the delivery is a matter in pais, so parol evidence is properly admissible to show, that the deed is wanting in that essential requisite.” 1 Shep. T. 57. The Court, in that part of the charge which has been made the subject of exception, ruled that if the deed was never delivered, no title passed to the plaintiff, although he may have been a purchaser for a valuable consideration, without notice. The facts given in evidence, proved that the deed was never' delivered, either by Morton or his attorney; that the possession of it was surreptitiously and fraudulently obtained by Glenn; if so, according to the authorities above cited, the deed was void ab initio; of no force and effect whatever. But this is on the supposition that the grantor has done no act ratifying the delivery; for a deed may be delivered by the party himself or by his appointment or authority precedent, or assent or agreement subsequent; for omnis ratihibitio mandato equiparatwr. If, therefore, the plaintiff could have proved, that the grantor, as he suggests, had received the purchase-money for the property, it would have amounted to an assent to the delivery of the deed to Glenn. But this was a matter for the jury; and does not enter into the exception to the charge as presented by the record. Unless there was a subsequent recognition of the delivery, or there was something done by the grantor, which enabled the grantee to deceive the purchaser, no title passed any more than in the case of a deed that was forged. But the jury have negatived every allegation of that kind. They have found, that the grantor retained the possession of the property as before the pretended sale; which was of itself notice to the purchaser so as to put him on inquiry as to the title. A bona Jide purchaser, for a valuable consideration from a fraudulent gran- . for, is protected by the statute of frauds. But that is, because such fraudulent conveyances are not absolutely void, but are voidable [388] only, at the instance of the party aggrieved. The legal title passes to the purchaser; for although void as to creditors, it is good as to the grantor: it therefore comes within a well known principle, that where the equities are equal, the legal title shall pi'evail. A bona fide purchaser is as much a favourite of the law as creditors, and perhaps, ought to be more so ; as he looks to the property itself specifically, whereas creditors look to the general funds. On this principle, the Court ruled Price v. Junkin, (4 Watts, 85.) That was the case of the sale of land by an executor, in pursuance of a power contained in a will. It was held, that the title, although fraudulent and void as against the purchaser from the trustee, because of his having been a party to the fraud, yet, as respects a subsequent and innocent purchaser from him, the title was good. As between the original parties, the conveyance is good, although subject to be defeated, in the one case by the children, and in the other by the creditors; but inasmuch as the legal title passed, it together with an equal equity, gave preference to the subsequent and innocent purchaser. In Price v. Junkin, Justice Sergeant says, “ If a loss is to happen by the exercise of that power, it should be by those representing the testator, who created it, and thereby enabled the executor to transfer the legal estate; not by the person who trusted to a title derived under that power, and on its face, fair and legal.”— But this principle cannot apply, when the deed was not delivered, and when-the party is in no default. We do not perceive the force of the objection to the evidence of the conversation between Giles Love and Daniel T. Glenn. The witness, at the time he saw the deed from ‘ Morton to Glenn, told Glenn he had no authority to take the house for the debt, and suggested that he should put in the name of Thomas Glenn, which was afterwards done. The evidence was pertinent, as it tended to show, that at the time the witness saw the deed, it was unexecuted. Nor is it any objection, that this was a conversation between Daniel T. Glenn and the witness, because, as appeared from the testimony, the whole matter resulted from a contrivance of Glenn for his especial benefit, and took place before he surreptitiously obtained the possession of the deed, upon a false suggestion from Isaac Morton. Upon the same principle, that it is a part of the res gestee, •the declarations of William Morton to Isaac Morton were properly admitted in .evidence- judgment affirmed.