Nebraska. Patrick v. McCormick (1880) 10 Neb. 1, 4 N. W. 312; Roberson v. Reiter (1893) 38 Neb. 198, 56 N. W. 877; Whipple v. Fowler (1894) 41 Neb. 675, 60 N. W. 15; Matteson v. Smith (1901) 61 Neb. 761, 86 N. W. 472.

New Jersey. Titus v. Phillips (1867) 18 N. J. Eq. 541; Manchester Bldg. & L. Asso. v. Allee (1910) 80 N. J. L. 185, 76 Atl. 1012.

New Mexico.-Otero v. Albuquerque (1916) 22 N. M. 128, 158 Pac. 798; Roberts v. Humphreys (1921) 27 N. M. 277, 199 Pac. 1006.

New York. Cagger v. Lansing (1870) 57 Barb. 421, affirmed on other grounds in (1871) 43 N. Y. 550; Artcher v. Whalen (1828) 1 Wend. 179; Clark v. Gifford (1833) 10 Wend. 310. See also Pendleton v. Hughes (1873) 65 Barb. 136, affirmed in (1873) 53 N. Y. 626; Dietz v. Farish (1877) 12 Jones & S. 190, affirmed in (1880) 79 N. Y. 520; Tucker v. Dudley (1906) 113 App. Div. 500, 99 N. Y. Supp. 339. North Carolina. Craddock v. Barnes (1906) 142 N. C. 89, 54 S. E. 1003.

Northern Trust Co. v. Bruegger (1916) 35 N. D. 150, 159 N. W. 859, Ann. Cas. 1917E, 447. Ohio.

Ogden v. Ogden (1854) 4 Ohio St. 182. See also Cincinnati, W. & Z. R. Co. v. Iliff (1862) 13 Ohio St. 235.

Oklahoma.-Powers v. Rude (1904) 14 Okla. 381, 79 Pac. 89; Hunter Realty Co. v. Spencer (Horner v. Spencer) (1908) 21 Okla. 155, 17 L.R.A. (N.S.) 622, 95 Pac. 757; Wood v. French (1913) 39 Okla. 685, 136 Pac. 734; Hallam v. Bailey (1917) 66 Okla. 46, 166 Pac. 874; Heath v. Burnham-Munger-Root Dry Goods Co. (1918) 74 Okla. 186, 177 Pac. 606; Taylor v. Harkins (1916) 74 Okla. 206, 178 Pac. 117; Stone v. Daniels (1920) 80 Okla. 45, 193 Pac. 986; Yantis v. Parker (1925) 110 Okla. 195, 237 Pac. 127; Republic Nat. Bank v. First State Bank (1925) 110 Okla. 299, 237 Pac. 578. Oregon. Tyler v. Cate (1896) 29 Or. 515, 45 Pac. 800; Bradford v. Durham (1909) 54 Or. 1, 135 Am. St. Rep. 807, 101 Pac. 897; Sabin v. Phoenix Stone Co. (1911) 60 Or. 378, 118 Pac. 494, 119 Pac. 724; Sharp v. Kilborn (1913) 64 Or. 371, 130 Pac. 735; Zoharopulos v. Hamilton (1923) 108 Or. 201, 216 Pac. 184.

Virginia. Humphreys v. Richmond & M. R. Co. (1891) 88 Va. 431, 13 S. E. 985; Blair v. Security Bank (1905) 103 Va. 762, 50 S. E. 262. See also Ward v. Churn (1868) 18 Gratt. 801, 98 Am. Dec. 749; Trout v. Warwick (1883) 77 Va. 731; Virginia Pass. &

Power Co. v. Patterson (1905) 104 Va. 189, 51 S. E. 157.

Washington. Qualley v. Snoqualmie Valley Bank (1925) 136 Wash. 42, 238 Pac. 915.

West Virginia. (1882) 20 W. Va. 272.

White v. Core

Wisconsin.-Everts v. Agnes (1855) 4 Wis. 343, 65 Am. Dec. 314, later appeal in (1857) 6 Wis. 453; Beloit & M. R. Co. v. Palmer (1865) 19 Wis. 574; Franklin v. Killilea (1905) 126 Wis. 88, 104 N. W. 993; Carpenter v. Carpenter (1910) 141 Wis. 544, 124 N. W. 488. See also Andrews V. Thayer (1872) 30 Wis. 228; Chipman v. Tucker (1875) 38 Wis. 43, 20 Am. Rep. 1; Rehbein v. Rahr (1901) 109 Wis. 136, 85 N. W. 315; Zoerb v. Paetz (1908) 137 Wis. 59, 117 N. W. 793. England. Watkins V. Nash (1875) L. R. 20 Eq. 262. See also Hare v. Horton (1833) 5 Barn. & Ad. 715, 110 Eng. Reprint, 954, 14 Eng. Rul. Cas. 699; Bell v. Ingestre (1848) 12 Q. B. 317, 116 Eng. Reprint, 888; Murray v. Stair (1823) 2 Barn. & C. 82, 107 Eng. Reprint, 313.

Canada. See Cogswell v. O'Connor (1877) 11 N. S. 287; Confederation Life Asso. v. O'Donnell (1882) 10 Can. S. C. 92, subsequent appeal in (1886) 13 Can. S. C. 218; Huron County v. Armstrong (1868) 27 U. C. Q. B. 533; Flour City Bank v. Connery (1898) 12 Manitoba L. R. 305; Trust & Loan Co. v. Ruttan (1877) 1 Can. S. C. 564.

Thus in Dunlevy v. Fenton (Vt.) supra, the court said: "When a deed is deposited with a third person to be delivered to the grantee only upon the performance of some condition precedent, and the depositary delivers it without the performance of the condition, there is no delivery in law, and the deed is without effect."

In Chicago & G. W. R. Land Co. v. Peck (1885) 112 Ill. 408, it was said: "It is the settled doctrine that the delivery of an escrow by the depositary to the grantee named therein, without a compliance with the conditions, is not a delivery with the assent of the grantor, and conveys no title, and that the authority of the depositary of an escrow is limited strictly to

the conditions of the deposit, a compliance with which alone justifies the delivery."

In Daggett v. Daggett (1887) 143 Mass. 516, 10 N. E. 311, the court said: "When a deed is delivered merely as an escrow, to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed. The transaction is incomplete. It is not the grantor's deed until the second delivery. Even if the grantee obtains possession of it before the condition has been performed, yet it is not the grantor's deed, and he may avoid it by pleading non est factum. The grantee cannot acquire the title by gaining possession of the deed by theft, by fraud, or by the voluntary act of the depositary, but only by performance of the condition. The depositary has no authority to waive. such performance, and an unauthorized delivery by him of the deed which he holds in escrow is entirely ineffectual to pass the title. Wheelwright v. Wheelwright (1807) 2 Mass. 447, 452, 3 Am. Dec. 66; Foster v. Mansfield (1841) 3 Met. (Mass.) 412, 37 Am. Dec. 154; O'Kelly v. O'Kelly (1844) 8 Met. (Mass.) 436; Calhoun County v. American Emigrant Co. (1876) 93 U. S. 124, 127, 23 L. ed. 826, 827; Watkins v. Nash (1875) L. R. 20 Eq. (Eng.) 262; 3 Washb. Real Prop. 5th ed. 321. In the present case, it having been found that the deed was merely an escrow, and there being no pretense that the conditions were ever performed, no title passed to the grantee by the subsequent delivery of the deed to him. The case is not like cases where the delivery of the deed is merely to await the lapse of time, or the happening of some event, not involving the performance of any condition by the grantee."

The recording of an escrow by a depositary, before the performance of acts required by the escrow agreement as a condition of the delivery of the instrument, does not constitute a delivery so as to transfer title. United States. Calhoun County v. American Emigrant Co. (1876) 93 U. S. 124, 23 L. ed. 826.

Colorado.-Knapp v. Nelson (1907)

Oklahoma.

Hallam v. Bailey (1917) 66 Okla. 46, 166 Pac. 874. Texas. Beaumont Car Works v. Beaumont Improv. Co. (1893) 4 Tex. Civ. App. 257, 23 S. W. 274.

The performance by a third person of the obligations of a purchaser, which are made the conditions of delivery of an escrow deed to the purchaser, does not give the third person a right to the delivery of the deed, and, if delivery is made to the third person under such circumstances, no title passes to him. Yantis v. Parker (1925) 110 Okla. 195, 237 Pac. 127. A delivery by a depositary of documents or money to a person who has failed to perform the conditions of delivery provided by an escrow agreement constitutes a conversion of the property. Trask v. Garza (1921) 51 Cal. App. 739, 197 Pac. 807.

In Pennsylvania, while the decisions in effect support the general rule, the unauthorized delivery of an escrow by the depositary is said to pass a voidable title to the grantee or payee. Booth v. Williams (1876) 11 Phila. (Pa.) 266, 33 Phila. Leg. Int. 128; Blight v. Schenck (1849) 10 Pa. 285, 51 Am. Dec. 478; Landon v. Brown (1894) 160 Pa. 538, 28 Atl. 921. See also Fertig v. Bucher (1849) 3 Pa. St. 308; Murphey v. Greybill (1907) 34 Pa. Super. Ct. 339. Thus, in Booth v. Williams, supra, the court said: "The assignment having been executed by Williams and delivered by his consent in escrow, the rights of plaintiff became fixed to have the delivery absolute on performance of the conditions of the escrow, and it is clear that defendant's right to rescind the contract on his own motion was gone. Still less had he any right to proceed without reference to the title of Mrs. Booth, which was acquired by

the delivery of the escrow to her absolutely by Parrish. By that act, whether it was right or wrongful, she became vested with a title which was not void, but only voidable, and could not be devested without proceedings to which she was a party. Blight v. Schenck (1849) 10 Pa. 294, 51 Am. Dec. 478; Eckman v. Eckman (1867) 55 Pa. 273." See, however, Robins v. Bellas (1834) 2 Watts (Pa.) 359, in which it appeared that the sheriff's deeds were placed in escrow to be delivered on payment of the purchase money, and after ten years one deed was delivered to the grantee by order of the court, although the condition on which they were deposited had not been performed. The court said with regard to the order of court for delivery of the deeds: "And indeed it is difficult to imagine upon what principle the court could have granted it without the condition upon which they were deposited had first been performed. As well might the court undertake to direct the sheriff's name and seal, in his absence, and without his consent, to be signed and affixed to a deed in order to consummate a sale of real estate made by him, as to order a deed which had been signed and sealed by him, but not delivered, or only deposited with a third person, to be delivered to the vendee on a certain condition being performed, as to order such deed to be delivered to the vendee without the consent of the sheriff, or the condition being first performed upon which it was deposited as an escrow. For it is just as necessary that the deed should be delivered by the sheriff, or by his assent, as it is that it should be sealed by him; and without both are done, it can have no possible effect whatever."

In Texas also a distinction has been made between voidable and void escrow deeds. Several cases decided by the courts of civil appeals of that state support the general rule. Houston Land & T. Co. v. Hubbard (1905) 37 Tex. Civ. App. 546, 85 S. W. 474; Boswell v. Pannell (1912) Tex. Civ. App. -, 146 S. W. 233; Reeves v. Bomar (1913) Tex. Civ. App. —, 157 S. W. 275, reversed on other

-

grounds in (1915) 107 Tex. 433, 180 S. W. 593; Tyler Bldg. & L. Asso. v. Baird (1914) 165 Tex. Civ. App. S. W. 542, affirmed in (1915) 106 Tex. 554, 171 S. W. 1122, 1200. See also Merchants' Ins. Co. v. Nowlin (1900) Tex. Civ. App. 56 S. W. 198. However, a deed deposited in escrow and delivered, through the fraud of the grantees, without a compliance with the conditions of the escrow, has been held by the commission of appeals and the supreme court not to be absolutely void, in the sense that a forged deed is void, so as to prevent the grantees from acquiring title by adverse possession under the Texas five years' Statute of Limitation. Neal v. Pickett (1926) Tex. 280 S. W. 748, reversing (1925) Tex. Civ. App. 269 S. W. 160.

b. Application of rules. Delivery of deed of conveyance.

In Bingham v. Taylor (1926) 12 F. (2d) 15, it appeared that, after negotiations with a broker, named Bingham, for the sale of land, the plaintiff executed a deed to Bingham, and sent .it to a bank to be held in escrow until the conditions imposed by him were fulfilled. The plaintiff knew that Bingham had sold the property to others, and Bingham knew that the plaintiff had an option on other land and expected to use the money paid by Bingham to purchase this land. The bank was informed that an expeditious settlement was necessary to furnish the plaintiff with funds to meet his obligations. After Bingham failed to comply fully with the conditions of the escrow within the time allowed under their agreement, the plaintiff sent a telegram to the bank, instructing it to "hold deal for further instructions." The bank, after the receipt of the telegram, accepted the balance of the purchase price from Bingham and delivered the deed. In a suit to cancel the deed to Bingham and a deed to purchasers from him, the court said: "It is well settled that a deed delivered in violation of the conditions under which it is deposited in escrow vests no title in the grantee, or in even an innocent third person to

whom he subsequently transfers. Houston v. Adams (1923) 85 Fla. 291, 95 So. 859; Ullendorff v. Graham (1920) 80 Fla. 845, 87 So. 50; Cobban v. Conklin (1913) 125 C. C. A. 431, 208 Fed. 231."

In Cobban v. Conklin (Fed.) supra, it was said: "The court below reached the conclusion from the evidence, correctly, we think, that by the terms of the contract the papers after their execution were to be deposited by J. C. Campbell in escrow with the AngloCalifornia Bank, with instructions to deliver them to Benson only upon the receipt of the stipulated purchase money, and that Campbell, having failed to deposit them in escrow, must be deemed to have retained them in the capacity of an escrow depositary. If so, the subsequent delivery of them was ineffectual to convey title, for it is the general rule that the unauthorized delivery of an instrument of conveyance held in escrow conveys no title, even in favor of an innocent purchaser without notice."

In Los Angeles City High School Dist. v. Quinn (1925) 195 Cal. 377, 234 Pac. 313, it was held that the sending of deeds by a depositary, to have attached certificates of acceptance by the grantee, was merely for the purpose of satisfying the requirements for recording deeds to political corporations, and not a delivery. Incidentally the court said: "Where a deed is placed in the hands of a third person, as an escrow, with an agreement between the grantor and grantee that it shall not be delivered to the grantee until he has complied with certain conditions, the grantee does not acquire any title to the land, nor is he entitled to a delivery of the deed, until he has strictly complied with the conditions. . . . If he does not comply with the conditions when required, or refuses to comply, the escrow holder cannot make a valid delivery of the deed to him."

In Trask v. Garza (1921) 51 Cal. App. 739, 197 Pac. 807, it appeared that the parties contracted for the sale of a pool hall and business, with furnishings and fixtures. The complaint in effect alleged that the buyer placed

in the hands of a depositary his promissory note and a sum of money in cash, to be delivered to the sellers on the performance of certain conditions within a stipulated period of time. One of the alleged conditions was that within the period the sellers were to . procure a lease from the owner of the building in favor of the buyer. It was also alleged that, although the lease was not procured, the depositary delivered the note of the buyer, and the sum of money deposited by him, to the sellers. It was held that the complaint stated a good cause of action; that it in effect charged the sellers and the depositary with converting the buyer's property.

In Knapp v. Nelson (1907) 41 Colo. 447, 92 Pac. 912, the court said: "It appears from the findings of the court and the evidence in support thereof, that the deed under which appellants claim title was recorded by the escrow holder in violation of, and contrary to the terms of an escrow agreement. Appellants contend that the recording of the deed constituted a delivery of the deed to them, thereby vesting in them title to the land in controversy. A deed placed in escrow, delivered in violation of, or contrary to, the conditions of the escrow agreement, has no force or effect as a deed, and passes no estate or interest thereby. Hamill v. Thompson (1877) 3 Colo. 523, 14 Mor. Min. Rep. 690; Snyder v. Voorhes (1884) 7 Colo. 297, 3 Pac. 483; Wolcott v. Johns (1896) 7 Colo. App. 376, 44 Pac. 675. Conceding that the recording of a deed is a delivery thereof, as contended by appellants,-upon which point we express no opinion, the delivery of the deed, under the facts of this case, passed no estate in the lands in controversy, to the appellants."

In Weghorst v. Clark (1919) 66 Colo. 535, 180 Pac. 742, it appeared that a deed placed in the hands of a depositary, in carrying out an exchange of lands, was not to be delivered until the deeds were examined by an attorney and abstracts delivered. Without awaiting the performance of these preliminary acts, the depositary had the deed recorded. The court said: "As to the effect of the

deed from Weghorst to Clark, the record shows it to have been recorded without actual delivery to Clark, without the authority and against the instructions of the grantor. This was not a delivery. The instrument was not a deed, and conveyed nothing.

We do not think the record shows that Weghorst ever waived this point. His correspondence shows that he demanded a reconveyance immediately. True, he was willing at all times to carry out the agreement according to its terms, and urged that that be done; and if it had been done the instrument would have been ratified and would have become a deed, but it was not done, and John R. Clark never signed or tendered a deed according to the terms of the contract, but refused to carry out the contract by paying the irrigation tax for 1913, by reason of which Weghorst rescinded. The conveyance, therefore, from Weghorst, never took effect."

In Coe v. Turner (1823) 5 Conn. 86, wherein it appeared that a deed placed in escrow was delivered in violation of the escrow agreement, the court said: "The deed was an escrow, and never has been legally delivered. An escrow is said to be, where one doth make and seal a deed, and deliver it unto a stranger, until certain conditions be performed, and then to be delivered to him, to whom the deed is made, to take effect as his deed. Shep. Touch. 58; 2 Bl. Com. 307. This is precisely the transaction respecting the deed committed to Coe, to be delivered on the prior performance of a specified condition. Now, where a deed is delivered to a stranger, as above, and apt words are used in the delivery of it, it is of no more force until the conditions be performed than if I had made it, and laid it by me, and not delivered it at all; and therefore, in that case, albeit the party get it into his hands before the conditions be performed, yet he can make no use of it at all, neither will it do him any good. Shep. Touch. 59; Perkins, §§ 143, 4, 14, and 137, 8; Bushell v. Pasmore (1704) 6 Mod. 218, 87 Eng. Reprint, 970. It necessarily follows that the deed to H. Hale has never been so