Foulkes v. Sengstacken

Mr. Justice Benson delivered the opinion of the court. With reference to the assignments of error based upon the findings of fact, it may be said at the outset that, while the evidence is conflicting, there is ample testimony in the record to justify the results reached by the trial court, and we are not inclined, therefore, to disturb them. 1, 2. The principal contention of appellant upon the legal questions involved is that the deposit of the deed with J. F. ,,Hall could not be an escrow, because the conditions of such deposit rest in parol, and therefore are rendered nugatory by the statute of frauds; and that, since this is so, the transaction was simply a continuing offer of sale which ended with the life of the grantor. This contention is untenable as to both propositions. In the first place, it has been definitely settled by this court that the terms of an escrow need not be in writing. In Gaston v. City of Portland, 16 Or. 255 (19 Pac. 127) Mr. Chief Justice Lord says: “The intent of the grantor must govern, and this is to be derived from all the facts, circumstances, and [123] proof. Nor is it necessary that the condition upon which the deed is delivered in escrow be expressed in writing; it may rest in parol, or be partly in writing and in part oral. The rule that a contract in writing inter partes must be deemed to contain the entire agreement or understanding has no application in such case” — citing Stanton v. Miller, 58 N. Y. 193. To the same effect is 1 Devlin on Deeds (3 ed.), Section 312a, which says: “It is well settled that the condition upon which the deed is delivered in escrow may be proved by parol evidence. The statute of frauds has no application to such an agreement, ordinarily, nor is it affected by the rule of evidence which prohibits a written contract from being contradicted or varied by parol evidence. ’ ’ In Cannon v. Handley, 72 Cal. 133 (13 Pac. 315), the court uses this language: “But it is said there was nothing in writing authorizing Cox to hold or deliver the deed. There is nothing in the statute which requires this to be in writing. The statute only requires a note or memorandum in writing as evidence of the contract. Nothing in it has reference to any arrangement for the delivery of the deed in escrow, or its subsequent delivery by the party so- holding it to the grantee.” If it were otherwise, and proof of the escrow agreement were excluded by the statute of frauds, that condition would not change the nature of a transaction from a sale to an option. The cases cited by appellant are not inconsistent with the views here expressed, since in each of them the vital point was an effort to enforce specifically the terms of an executory parol contract, while the case at bar presents an executed contract wherein the escrow had been terminated by delivery prior to the commencement of this suit. [124] 3. The conclusions we have reached practically dispose of the appeal, since the authorities are unanimously to the effect that the death of the grantor cannot affect the subsequent delivery of a deed in escrow by the depositary upon the fulfillment of the conditions: Jackson v. Jackson, 67 Or. 44 (135 Pac. 201, Ann. Cas. 1915C, 373); Devlin on Deeds (3 ed.), § 333a. There are other assignments of error; but, since they are involved in the discussion already had, it is not regarded as necessary to discuss them. The decree is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.