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upon a sale of leasehold property without any condition protecting the vendor against the production of deeds, the vendor is bound to produce the lease which

a particular estate, a delivery of the deed to the first taker is a delivery as to all who may be to take under it. Folk v. Varn, 9 Rich. Eq. 303. In the case of several grantees mentioned in one deed, it may be delivered to one on one day, and to another on another, and so take effect as to all. Washburn on Real Property, vol. ii. p. 583. But, unless so expressed by the grantor, a delivery as to one is not a delivery as to all. Hannah v. Swarner, 8 Watts. 9. A class of cases is treated by Washburn (on Real Property, vol. ii. p. 583), where debtors and insolvents deliver deeds in assignment to third persons, for the benefit of creditors. In one such case, Merrills v. Swift, 18 Conn. 257, the deed took precedence of an attachment, though not actually received and accepted by the creditor until after the attachment was made; and see Wilt v. Franklin, 1 Bin. 502. A deed in a grantee's hands is never an escrow, although the title may pass, unless, under peculiar circumstances. Fairbanks v. Metcalf, 8 Mass. 230, 238; Brown v. Reynolds, 5 Sneed, 639; Cin. Wil. & Z. R. R. v. Iliff, 13 Ohio St. 249-254. And see, as to conditional delivery of bonds, Lawton .v. Sager, 11 Barb. 349; Williams v. Green, F. Moore ; Foley v. Cowgill, 5 Blackf. 18; Gilbert v. N. A. Ins. Co., 23 Wend. 43. In the case of an escrow some condition is essential, upon performance of which the title Millett v. Parker, 2 Met. (Ky.) 608, 616; Worrall v. Munn, 1 Seld. 229; Wight v. Shelby R. R., 16 B. Monr. 4. And consult M. & I. Plank Road Co. v. Stevens, 10 Ind. 1. A delivery to a party vests the title as the deed of the grantor. Herdman v. Bratten, 2 Harring. 396; State v. Chrisman, 2 Ind. 126; Plank Road Co. v. Stevens, 10 Id. 1; Black v. Shreve, 13 N. J. 458; Cincinnati, &c. R. R. Co. v. Iliff, 13 Ohio St. 249; Wheelright v. Wheelright, 2 Mass. 447; State Bank v. Evans, 3 Green, 155; Foster v. Mansfield, 3 Met. 412, O'Kelly v. O'Kelly, 8 Id. 434; Shaw v. Hayward, 7 Cush. 175; Jackson v. Catlin, 2 Johns. 248, 259; Jackson v. Sheldon, 22 Me. 569; White v Bailey, 14 Conn. 271; Hinman v. Booth, 21 Wend. 267; Green v. Putnam, 1 Barb. 500, 504; Frost v. Beekman, Johns. Ch. 297; Evarts v. Anges, 4 Wis. 351; Ruggles v. Lawson, 13 Johns. 285; Shirley v. Ayres, 14 Ohio, 307; Jackson v. Rowland, 6 Wend. 666. A deed sent inclosed in a letter to a third person, to be delivered to a grantee upon

vests.

is the root of his title, although the lease is more than sixty years old. (k) The vendor is not bound to abstract, at his own expense, deeds more than sixty years old, when a good title for sixty years is apparently deduced. But, when any circumstance transpires throwing a serious doubt upon the title as deduced, the vendor must then be at the expense of bringing forward further and earlier evidence to remove the doubt. A delivery of the vendor's title-deeds themselves is not equivalent to the delivery of an abstract of title. ()' But the right of the purchaser to have

(k) Frend v. Buckley, L. R., 5 Q. B. 213; 39 L. J., Q. B. 90.

(4) Horne v. Wingfield, 3 Sc. N. R. 340.

his paying a certain sum, is an escrow; Clark v. Gifford, 10 Wend. 310; Gilbert v. N. A. Ins. Co., 23 Id. 43; State Bank v. Evans, 3 Green, 155; Millett v. Parker, 2 Met. (Ky.) 616. If an escrow be delivered before the condition is performed, no title will pass. Stiles v. Brown, 16 Vt. 563, 569; Jackson v. Sheldon, 22 Me. 569; State Bank v. Evans, 3 Green, 155; Rhodes v. Gardiner, 30 Me. 110; unless the grantee holding it convey the land to a bona fide purchaser, ignorant of the fact as to the delivery. Blight v. Schenck, 10 Penn. St. 285; Peter v. Wright, 6 Ind. 183; Souverbye v. Arden, 1 Johns. Ch. 240. Everts v. Agnes, 4 Wis. 343; Cincinnati, &c. R. R. v. Iliff, 13 Ohio St. 249; Southern, &c. Ins. Co. v. Cole, 2 Fla. 359. If a feme covert deliver a deed as an escrow, and become discovert before the second delivery, such second delivery will give no validity to the deed, the first being void. Washburn on Real Property, vol. ii. 587. And as to when the party who makes the deed dies before the event happens, which was to make it effectual, see Jackson v. Catlin, 2 Johns. 248, 259; Hatch v. Hatch, 9 Mass. 307, 310; Jackson v. Rowland, 6 Wend. 666; Shirley v. Ayres, 14 Ohio, 309; Ruggles v. Lawson, 13 Johns. 285; Carr v. Hoxie, 5 Mason, 60; Evans v. Gibbs, 6 Humph. 405; Frost v. Beekman, 1 Johns. Ch. 257.

A question may arise in England, under certain circumstances, as to who has a right to the custody of title deeds. But probably under the American system of registration no such question would arise (Williams on Real Property, 375;

an abstract may, of course, be waived; and, if the agreement for the purchase provides for the delivery of an abstract to the purchaser at the vendor's expense, this stipulation may be waived by an acceptance on the part of the purchaser of the title-deeds themselves, and a perusal and consideration of them and approval of the title on the part of the purchaser's attorney or counsel; but the fact of the approval and of the waiver of the delivery of the abstract must be established through the medium of letters and written evidence of the same legal character and importance as that by which the contract itself is authenticated, and can not be established through the medium of oral testimony.

A proviso that, in case the vendor can not deduce a good title or the purchaser shall not pay the money on the appointed day the agreement shall be void, does not enable either party to vitiate the agreement by refusing to perform his part of it. The meaning is that, if the vendor can not make out a title, the purchaser shall be at liberty to be off the bargain; and so e contra, if the purchaser is not ready with the money, the vendor may refuse to carry out the contract; but "the purchaser can not say, 'I am not ready with my money; therefore I will avoid the contract;' nor can the vendor say, 'My title is not good; therefore I will be off." (m) Where there is a proviso that, if the purchaser shall raise objections to the title which the vendor shall not be able or willing

(m) Roberts v. Wyatt, 2 Taunt. 277.

Rawles' note; Washburn on Real Property, vol. i. § 33). In case of the granting of the fee the English deeds usually contain a clause in relation to the transfer of the title deeds, but there is of course no necessity for such a clause with us. Id. vol. ii. § 65.

to remove, the vendor shall be at liberty to rescind the contract, the vendor, when the objections are sent in, must determine which of the two courses he will adopt. If he expresses his willingness to remove the objections, he is forever thereafter precluded from exercising the option given him to rescind the contract. (n) If the time for making objections to the title is limited, the limitation is waived by the vendor's receiving and considering the objections after the time appointed, provided the fact can be established through the medium of letters or any evidence in writing. (0) Where, after notice of rescinding the contract, a correspondence on the title is continued under protest, this gives to the transaction the character of a treaty for the renewal of the rescinded contract. (p) If it is provided that no further evidence of the identity of the parcels shall be required beyond what is afforded by the title-deeds and documents abstracted, and the descriptions in the documents differ, the purchaser is entitled to further proof of identity. (q) If it is vided that no other title shall be required than that deduced by a particular abstract, the purchaser is not precluded from objecting to the title as it appears upon the face of the abstract. (~) If a party sells an estate without having a title, but before he is called upon to make a conveyance, gets such an estate as will enable him to make a title, that is suffi'cient. (s)1

(n) Tanner v. Smith, 10 Sim. 411.
(v) Cutts v. Thodey, 13 Sim. 206.
(p) Southcomb v. Bishop of Exeter,

16 L. J., Ch. 378; II Jur. 275.

(9) Flower v. Hartopp, 6 Beav. 475.

pro

Nicholl v. Chambers, 21 L. J., C. P. 54.

(r) Sellick v. Trevor, II M. & W.

729.

(s) Thompson v. Miles, 1 Esp. 195.

'Tison v. Smith, 8 Tex. 147; Wilson's Estate, 2 Burr. 325

514. Of the title to reality. An agreement to sell a house or land generally, not specifying the estate or interest of the vendor, is in contemplation of law an agreement to sell an estate in fee: and the purchaser may refuse to complete his contract, if the vendor is unable to make out a title to, and convey, such an estate. (t) But, if the abstract of title, when delivered, shows that the vendor is possessed only of a life estate or a term of years, and the purchaser, after the delivery of such abstract, proceeds with the purchase and accepts the title, the contract will be deemed to be a contract for the sale and purchase of the estate and interest disclosed upon the face of the abstract. If the agreement specifies the precise nature of the estate or interest bargained for and agreed to be sold, and the abstract discloses a title to a different estate in the same land, and the purchaser accepts the title in writing, the contract for the sale and purchase of the firstnamed estate will be deemed to be abandoned, and a new contract set up for the purchase of the interest disclosed upon the face of the abstract. But an oral acceptance of the title, and an oral agreement to accept such subsequently disclosed interest in lieu of the

(t) Hughes v. Parker, 8 M. & W. 244.

Whenever the grantor of a defective title afterwards acquires a good title, it enures to the benefit of his grantee. McCall v. Coover, 4 Watts. & Serg. 151. In Mays v. Swope (8 Gratt. 46), it was held that where a vendee of land discovered a technical defect in the title, and thereupon abandoned it, and brought a bill to enjoin the collection of the purchase money, he nevertheless could not refuse to accept the title upon its being made perfect. If a grantor convey the whole of a tract of land of which he owns but a parcel-if he afterward come into possession of the rest, it enures to the benefit of his grantee. Tyson v. Passmore, 2 Burr. 122.

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