
    
      Samuel Brooks, pro al. v. W. M. Bobo et al.
    
    Where it was obvious that the parties to a sealed note or obligation, executed it and left it in the hands of the principal obligor, to be delivered to the obligee only on condition that he would discount it, and the obligee had refused to do so — the Court held, that there had been no delivery to him, either actual or constructive ; and that to an action brought on the note in his name, either for his own benefit, or for that of any other person, the plea of non est factum was a good defence.
    
      Before Evans, J. at Edgefield, Spring Term, 1849.
    It appeared from the evidence in this case, that Col. Griffin, Christie and others, had been security for one Cochran, who owned a Newspaper Press at Hamburg. To secure themselves, they took a mortgage of the press. Cochran did not pay the debt, and they were obliged to do so. They proceeded to foreclose their mortgage by sale. At this sale W. M. Bobo, who in the mean time had become the Editor of the paper, purchased at $700. The terms were a credit of 3 and 6 months, note with security. To be resold the next day if the tejrms were not complied with. Bobo was unable to give security, but said if he had time to go to Union, he could raise the money among his friends, and, to induce Col. Christie to forbear the resale, gave him a note, signed by himself and Pearson, for $200, to cover any loss sustained by a resale, if he did not comply. Brooks, the nominal plaintiff, had formerly resided at Union, and was well acquainted with Bobo’s relatives. He is now living at Edgefield.
    Bobo went to Union; he drew a sealed note for $1000, payable to Samuel Brooks, or bearer. It was signed by himself and the other defendants, who are his father and brother. There were other seals, and it was, no doubt, intended that 
      others should sign it; several persons who were applied to refused. There was no evidence that the defendants G. M., &. C. D. Bobo, signed on any such conditions, or if they had, that Brooks or those to whom it was transferred, were privy to it. It they were deceived, it was not by any act of Brooks or those who were sueing in his name. W. M. Bobo, the principal, brought the note back to Edgefield and offered it to Brooks, who declined to discount it. He then applied to Christie, and wished him to advance the money on it to pay for the press, who declined. He desired Griffin and Christie not to interfere with the press, and it was agreed finally, they should take the note as collateral security, for forbearing to foreclose the mortgage. Bobo saying, he could go to Union and get another note, on which he would raise the money, and take up this note. It was not received in payment. Col. Griffin said he did not intend by taking the note to abandon the mortgage. Brooks was not consulted — he was not in Edgefield at the time. Two or three weeks afterwards, Griffin applied to Brooks to assign it; he declined to do so until he heard from Dr. Bobo, (G. M. Bobo.) He wrote to Dr. Bobo, informing him that Griffin had presented him the note to be assigned, and that Griffin said he had taken it for a printing press, to secure $700. The note is dated the 23rd of December, and he wrote to Dr. Bobo on the 7th January. Dr. Bobo replied to this letter, requesting Brooks to have nothing to do with the note, and to shew his letter to Griffin, which was done. When Christie and Griffin received this note, they gave up the note formerly given for the same purpose, signed by W.' M. Bobo and Pearson. Afterwards, when Griffin and Christie attempted to foreclore the mortgage, by again selling the press, it appeared that W. M. Bobo in the mean time had sold it to one who claimed that he was purchaser from one in possession, without notice of the mortgage, or that Bobo had not complied. An injunction to restrain them from selling was issued from the Court of Equity, which is undecided. They then resorted to their collateral security.
    Brooks, who was examined, said he did not direct the suit to be brought. Griffin said to him, he had brought the suit in his name, or was about to do so. Brooks did not remember the reply he made, but said he did not forbid it; would have, consented if requested. May have been asked, and if he had been, would have consented. Does not object to the use of his name, provided he incurs no responsibility. This was the substance of the evidence.
    His Honor thought there was no difficulty about the consideration. The consideration was the surrender of Pearson’s note, and a further extension of the re-sale of the press. He had some hesitation on the question, whether this action could be maintained in the name of Brooks, through whom Griffin and Christie did not claim, but as Brooks did not disclaim the action, he charged the jury, that it would lie, and ' that they might render a verdict for the plaintiff, to the extent for which it was ^received, as collateral security, viz; $700,' which they did.
    The defendants appealed, and moved for a non-suit and new trial, on the following grounds :
    1. Because there was no consideration whatever to support the contract or single bill, on which-this action is brought.
    2. Because the single bill is incomplete, not being subscribed by the requisite number of sureties, according to the understanding of the defendants at the time they subscribed their names to it.
    3. Because there was no sufficient delivery made of the said single bill, the plaintiff never having had any property or interest in or control of the said instrument.
    4. Because the persons for whose benefit this suit is brought, parted with no valuable consideration for the said single bill, and were informed by the plaintiff of the circumstances under which the said single bill was subscribed, at, or very shortly after, the time they acquired the possession of it.
    5. Because it is respectfully submitted, that the presiding Judge erred in charging the jury, that upon the case stated and proved, the plaintiff was entitled to recover, at least, to the extent of the demand of Christie and others against the defendant W. M. Bobo, for the price of the press and type sold to him, under the mortgage of the same, made to them by Cochran.
    
      Carroll, for the motion.
    
      Wardlaw, contra.
   Curia, per Frost, J.

The third ground of appeal only will be considered. Delivery is necessary to a deed. — Without it, the deed creates no obligation ; and the obligor may plead non est factum. Delivery may be made immediately to the grantee or obligee; or it may be made to a third person ; and it may be absolute or conditional. It is necessary, however, to an effectual delivery, that the grantee or obligee should assent to it, either expressly or impliedly. The assent of the grantee to the delivery of a deed to a third person, for his use, will be implied when it is for his benefit. As if, one intending a-gift, or in performance of a promise to give security to a creditor, should execute a bond and deliver it, without the knowledge of the obligee, to a third person, for his use, the bond is presently the deed of the obligor. But it is otherwise if the grantee refuses to accept the deed. In Wrenchford v. Wrenchford, Lord Holt says, if the executor had not administered, but had refused in the Ecclesiastical Court to be executor, that making him executor, had not been a release; for you shall no more force a man against his will, to accept oí a release than of a deed of grant; and the subsequent refusal makes the deed void ab initio. And ■if a deed of release were delivered to B. for the use of the obligor, and the obligor refuses to accept it, it is not the deed of the obligee, and he may plead non est factum.

If a writing, signed and sealed, be delivered to a third person, whether, by such delivery, it is the deed of the grantor, presently, or not until the happening of an event on which it is to be delivered to the grantee, may depend on the intention of the grantor. If it be delivered to the third person as his deed, to be delivered to the grantee on some future event, it is the grantee’s deed, presently. ■ But if it be delivered to the third person, as his writing or escrow, to be delivered to the grantee, on some future event, as his, the grantee’s deed; and it be delivered to the grantee accordingly, it is not the grantor’s deed, until the second delivery. In this case the grantor being very low and having given his attorney instructions to prepare his will, directed the attorney to bring to him certain deeds from a trunk, and delivered them to the attorney, with directions, if the grantor died without making a will, to deliver the deeds to the grantees. The grantor died before the will could be drafted; and it was declared that the deeds took effect by the delivery of them to the attorney.

If the writing be delivered to a third person, to be delivered to the grantee, on the performance of some act, it is not the deed of the grantor by such delivery, nor until the grantee perform the condition. In Jackson v. Catlin, a sheriff’s deed of conveyance was delivered to the attorney of the grantee, to be delivered to the grantee, on payment of the purchase money. Kent, C. J. says, it was the intention of the parties that until the money was paid and the deed delivered, the sale was not to operate and the title was to continue in Crog-han. This is not only the obvious meaning of the transaction, but it is the conclusion of law. The deed in question was clearly an escrow. It was left with the attorney to be delivered to Jones, on payment of the purchase money. A deed is delivered as an • escrow, when the delivery is conditional, and it is of no force until the condition be performed. And the condition may be the payment of money, as well as any thing else.

It is obvious that the parties to the sealed note or obligation did not, by their execution of it, and by the possession of William M. Bobo, intend a delivery to Brooks ; and if they had so intended, it could not be forced on him against his consent. Being made to be delivered to him, only on condition that he would discount it, and he having refused to do so, there has been no delivery to him, actual or constructive.

To the action brought in his name, either for his own benefit or that of any other person, the plea of non est factum is a good defence.

The motion for a new trial is granted.

The whole Court concurred.

Motion for new trial granted.  