Andrews v. Farnham

Vanderburgh, J. It is found by the trial court that John Korns, mentioned in the answer, the senior judgment creditor, who had bought in the land in dispute upon execution sale, did on the second day of October, 1879, and before the time of redemption expired, execute in due form a quitclaim deed of the same, running to John T. Averill, William A. Russell and H. M. Carpenter, copartners as Averill, Russell & Carpenter, and forwarded it to the First National Bank of Minneapolis, to be held by said bank till the payment of the redemption money by said Averill, Russell & Carpenter, who had a subsequent judgment lien on the premises. The time for redemption expired, and the title of Korns became absolute, October 6, 1879. On the next day the bank, having received the redemption money, delivered the deed to Averill, Russell & Carpenter, in pursuance of the understanding of the parties. This action is brought by plaintiff upon the promissory notes of defendants, made to him in consideration of a conveyance by him to them of the same land by deed with full covenants, but which, as it turned out, was subject to the judgment of Korns and Averill, Russell & Carpenter, and without the fault of defendants was lost to them, as the court finds, through the execution sale and the quitclaim deed of Korns, above mentioned. The plaintiff (who brings this appeal) did, on the tenth day of March, [249] 1880, also procure a quitclaim .deed of'the premises from Korns, by which he claims to have acquired a title from him, which passed by •estoppel to defendants. He contends that the prior deed to Averill, Bussell & Carpenter, above described, was invalid, and this is the sole question presented for our consideration in the case. Whether, when a deed is handed to a stranger to be delivered to the grantee at a future time, it is to be considered the deed of the .grantor presently, or an escrow, to take effect on the further delivery to the grantee, is a question to be determined by the actual intent of the grantor, as gathered from the evidence. Foster v. Mansfield, 3 Met. 412; Hathaway v. Payne, 34 N. Y. 92. Here there is no doubt as to the intent of the parties. The deed was left with the bank as an •escrow, and took effect as the deed of the grantor at the date of its .final delivery, and not before; and whatever title Korns acquired under the execution sale passed to his grantees. Jackson v. Gatlin, 2 John. 248; Jackson v. Rowland, 6 Wend. 666; Cagger v. Lansing, 43 N. Y. 550; State v. Young, 23 Minn. 551. The grantees in the deed took presumptively as tenants in common. It is not material that they are described in the deed as partners. The case appears to have been rightly determined, and the judgment should be affirmed.