Fuller v. Hollis

STONE, J. A deed may be delivered as an escrow, to any person other than the grantee, and does not become a -conveyance so long as it remains in that condition, or until the condition is performed upon which it is to take effect. Delivery is essential to the execution of a deed, and until -delivered, it is no deed.—Frisley v. McCarty, 1 Stew & Por. 56; Firemen’s Ins. Co. v. McMillan, 29 Ala. 147. Such delivery may be shown by positive proof, or by circumstances. .“See McClure v. Colclaugh, 17 Ala. 89; Ward v. Ross, 1 Stew. 136; but to be effective as a conveyance, it must appear from ■the circumstances that the deed has passed from the grantor with the intention of actual delivery to the grantee.—See Houston v. Stanton, 11 Ala. 413; McMorris v. Crawford, 15 Ala. 271; Trippe v.John, 15 Ala. 117. The pleadings and evidence in this record show that the deed of Wilkerson to Brewer never was delivered to the ■latter, but remained with Hollis as an escrow. This case • then stands precisely as the contract was first made, namely: Mr. Brewer in possession, holding only a bond for title, and a large part of the purchase-money unpaid, Mr. Hollis being the owner of the claim. In such ca,se, a purchaser from Brewer, or, at sheriff’s sale of his interest, can, in no sense, be classed a purchaser without notice. To raise that pre- ■ sumption, a fundamental condition is, that Brewer must have had a legal title.—Chapman v. Churm, 5 Ala. 397; Kelley v. Payne, 18 Ala. 371; Bradford v. Harper, 25 Ala. 337; Owen v. Moore, 14 Ala. 640; Wells v. Morrow, 38 Ala. 125; Roper v. McCook, 7 Ala. 318; White v. Stover, 10 Ala. 441; Plowman v. Riddle, 14 Ala. 167. In such case there is a vendor’s lien for the purchase-money, and such lien will not be lost by -the assignee extending the day of payment, and taking a new _note for the purchase-money in his own name.—Conner v. [438] Banks, 18 Ala. 42; see Boyd v. Beck, 29 Ala. 703; Flinn v. Barclay, 15 Ala. 626. We think the chancellor reached the right conclusion, and-on correct reasoning. Affirmed.