
    Norman C. Baldwin et al. v. The President, Directors and Company of the Bank of Massillon.
    Where a deed of conveyance for several tracts of land was delivered by grantor to grantee or his agent, who acknowledged the receipt of the same, but in so doing added a condition that the deed should be received in satisfaction of a bond of the grantor and others, held by the grantee, in case the grantor’s title to the premises mentioned in the deed should be found on an examination of the records to be good, and the grantee, after retaining the deed for some months, and ascertaining that the title was defective as to part of the lands described in the deed, handed the doed back to the ^grantor or his co-obligor in the bond, the title to that part of the iands of which the grantor was seized, passed to the grantee, and was not reconveyed by the mere return of the deed.
    Where the court of common pleas erred in ruling as to a material fact in the defense, and the bill of exceptions does not profess to show all the evidence, so as to enable this court to ascertain that the defendants were not prejudiced by sucli erroneous ruling, a judgment against the defendants will be reversed.
    Error to the common pleas of Summit county, reserved by the late supreme court on the circuit, for decision by the court in bank.
    The action in the court below was debt on a bond made by Norman 0. Baldwin and Frederick Baldwin as principal debtors, and Yan R. Humphrey as surety, to the bank of Massillon.
    The defendants pleaded in bar:
    First. Non est factum.
    Second. That on 1st January, 1843, Frederick Baldwin, one of the defendants, delivered to the Bank of Massillon “ a certain deed of conveyance, containing the usual and full covenants of warranty and seizin—executed by himself and wife—therein and thereby conveying to the bank certain real estate in fee simple,” to-wit: five city lots in Ohio City; 44 acres of land in tract 82, township 3, at the Rapids of the Miami of Lake Erie; the southeast quarter of section 22, township 6, north, range 11, in Wood county, and an undivided half of the north half of the southwest quarter of section 27, in town, range, and county last named, “in full satisfaction and discharge” of the amount due on said bond; “which said deed, and the premises therein mentioned and described, the bank then and there accepted and received in full satisfaction and discharge,” etc.
    The plaintiff replied:
    1. Similiter, to hhe plea of non est factum.
    2. To the plea of accord and satisfaction, that Frederick Baldwin “ did not deliver the said deed of conveyance, or *convey the said several premises to the bank in full satisfaction,” etc., “ nor did the bank accept and receive the same in full satisfaction and discharge,” etc., concluding to the country.
    The cause was tried to a jury on these issues, and resulted in a verdict and judgment in favor of the bank, for $6,340.29, and costs. A bill of exceptions was taken during the trial, from which it appears, that on the 12th of December, 1840, the plaintiffs in error made their bond to the Bank of Massillon for $3,889.75, payable in six months, with interest. On the 24th of January, 1843, the bond being still unpaid, Frederick Baldwin, one of the makers (in accordance with an arrangement previously made, and hereinafter stated), sent to Parker Handy, cashier of the bank, a deed, with the usual covenants of warranty and seizin, made by himself and wife, and which purported to convey to the bank in fee simple the various premises mentioned in the plea of accord and satisfaction. Upon the receipt of the deed, Handy addressed a letter to Baldwin, expressing the exact arrangement between them, which constitutes the accord relied on by the plaintiffs in error, and is as follows :
    Bank op Massillon, Jan. 24,1843.
    “ Dear Sir :—I have this day received a deed executed by yourself and wife, for the following lots of land: (here follows an enumeration of the same premises described in the plea). The above lands we are to receive for the payment of a certain bond, dated Dec. 12, 1840, for $3,889.75, and interest from date, which now amounts to $4,381.84. Said bond is signed by N. C. Baldwin, F. Baldwin, and Yan E. Humphrey. The above land is to be received for the liquidation of said bond, if upon the examination of the records the title is found to be good and unquestionable to all of said tracts or parcels of land. I shall be at your place this week, and will call and see you.
    P. Handy, Cashier.
    “ F. Baldwin, Esq.”
    At the time of this conveyance, neither Frederick Baldwin nor his wife had a good title to all of the several tracts of land mentioned in the deed. On the receipt of the deed, Handy *sent it to Messrs. Spink & Hosmer of Wood county, in which all the lands but the Ohio City lots were situated, with instructions to examine the title to the lands in that county, and if they found it to be good, to have the deed recorded—otherwise to have it returned without record. Finding the title to be defective, Messrs. Spink & Hosmer withheld the deed from record, retaining it, however, for further instructions from Handy. The Baldwins were notified that the title was defective, and they promised to have it made good ; but in August or September of the same year, the title to a part of the lands still being imperfect, Handy delivered the deed to Norman C. Baldwin, in the.presence of Fredrick Baldwin.
    The court, among other things, charged the jury :
    “ That, under the plea' of accord and satisfaction, as interposed in this case, it was incumbent on the defendants to ; show, to the satisfaction of the jury, that Baldwin and wife, or one of them, had a good title to all of the lands described in their said deed to the plaintiff, at the time of their execution and delivery of the conveyanee, for such deed would not convey lands to which the grantors had no title.
    “That to constitute a valid legal delivery, so as to vest title in the grantee, two things were necessaiy: a delivery of the deed by the grantor to the grantee, with intent to deliver, and an acceptance thereof by the grantee, with intent to accept; for no man could be made a grantee without his acceptance, either expressed or implied.
    “ That t"he defense of accord and satisfaction rests upon the agreement of the parties, and not in the simple reception of property, and, therefore, that the conveyance by Baldwin and wife to the plaintiff, of a part only of the lands mentioned in their deed (even though the title to such part vested in the plaintiff), would not bo a satisfaction of the bond, unless such was the agreement of the parties; and that the existence or non-existence of such agreement was a question of fact for the jury.”
    The counsel for the defendants requested the court to charge the jury as follows :
    . “ 1. That if they find that defendant, Fredrick Baldwin, in person or by his agent, for the pui’pose of paying the bond on which this suit was brought, delivered to the plaintiffs a duly executed deed, from himself and wife to plaintiffs, of land, which deed the plaintiffs received, but with an understanding and agreement between the parties, or upon the condition, declared by the ^plaintiffs at the time, that said deed should pay and satisfy said bond,.if, upon examination of the records, the title to all of said lands should be found good ; but otherwise it should not operate as a satisfaction— such condition, either stipulated or declared, did not prevent the transmission from said Baldwin and wife to plaintiffs, eo instanti, of such title as the grantors had in the lands described in the deed.
    “ 2. That, in order to divest the plaintiff of such title, and restore it to the grantor on the discovery of defects in the title, to a portion of the lands, a mere return of the deed to the grantor was not sufficient in law, but it was necessary to the restoration to Baldwin of the title to such portion of the lands as - ho had a good title to, at the time of his conveyance to plaintiffs, that plaintiffs should have executed and delivered to said Baldwin, in duo form of law, a deed releasing or conveying to him such title as plaintiffs had in the transactions received from said Baldwin and wife.
    “3. That, if the jury finds that no such re-conveyance or releaso was made by plaintiffs to said Baldwin before the commencement of this suit, the effect in law of thus retaining the title to such portion of said lands as the grantors, Frederick Baldwin and wife, had and conveyed to plaintiffs (though not covering all the lands mentioned and intended to be conveyed in said Baldwin’s deed xo plaintiffs), would be to fasten upon the plaintiffs such title and lands as were transmitted, in manner aforesaid, from Baldwin and wife to plaintiffs, as being by implication or operation of law accepted and received by plaintiffs in satisfaction of said bond, and would amount in law to a waiver by plaintiffs of conditions agreed upon or declared in relation to tho validity of the title to all of said lands upon which plaintiffs would accept said deed from Baldwin and wife in satisfaction of said bond.
    “4. That, although the jury should find that said deed was received by plaintiffs with an express condition (but not inserted in the deed) that it should apply in satisfaction of said bond only in case that a good record title to all of the lands embraced in said deed should be found, on examination of the records, to exist, it was incumbent on the plaintiffs before commencing this suit, at least to have restored or tendered said deed back to Baldwin ; that a return of the same to Norman C. Baldwin, though in the presence of Frederick Baldwin, was not sufficient for that purpose; and in the absence of proof of such restoration to Frederick Baldwin, the plaintiffs are estopped from denying that said deed was accepted and received in satisfaction of said bond.”
    But the court charged the jury on the points, so as aforesaid made by defendants’ counsel, as follows:
    First. “ That no title would be transmitted from Baldwin and wife to plaintiffs, of any portion of said lands at the instant of delivery, under such circumstances or conditions.”
    Upon the second and third points the court charged “ that if the title to any portion of the lands embraced in said deed was defective, it was not incumbent on plaintiffs to convey to said Baldwin, before commencing suit, such *title as plaintiffs might have received (if, in fact, a title to some portion, but less than tho whole of said lands did pass to said plaintiffs); nor would their retaining such title to any portion less than the whole of the lands described in the deed amount in law to an acceptance' of the same by plaintiffs in satisfaction of said bond; nor would it be a waiver of any condition in relation to the title, upon which plaintiffs accepted the deed; inasmuch as it would amount to only a part execution of the accord.”
    On the fourth point the court charged “ that if the title to any portion of the land embraced in the deed were defective, it would not be incumbent on plaintiffs, before commencing the suit, to return or tender said deed to any one; and they would not, by reason of their having neglected to return or tender said deed to said Frederick Baldwin, be estopped from denying that they had accepted and received said deed in satisfaction of said bond.”
    The charge of the court as above given, and the refusal to charge as requested, are now assigned for error.
    
      M. Birchard, for plaintiff in error.
    Title vests the moment a deed is placed in the hands of grantee with intent to furnish a muniment of title. 2 G-reenleaf’s Cruise, Title 32 Deed, ch. 2.
    Title vests by delivery of a deed, and is not divested by returning it immediately to the grantor. 8 Ohio, 81; 2 Id. 266; 1 -Id. 327.
    
      Geo. Kirhum, on the same side.
    Blackburn’s Lessee v. Blackburn, 8 Ohio, 81; 2 Black Comm. 309; Unger v. Wiggins, 3 Bawle, 331.
    
      Otis & Wolcott, for defendant in error.
    The defense of accord and satisfaction rests upon the agreement of the parties, and not on the simple conveyance or acceptance of property. 1 Saund. PI. & Ev. 23 ; 3 Steph. Comm. 273; Chitty’s PI. 613; 1 Brigh. W. C. 502 ; 7 Ad. & El. 134; 4 Denio, 418.
    An accord in part executed is not a bar. The satisfaction agreed on must be fully performed to constitute a defense. 6 Wend. 390 ; 8 Ohio, 394.
    All the later authorities concur in declaring that, to vest title in the grantee, the deed must not only be delivered to, but accepted 147] by him. 1 Johns. Cas. 114; 12 Johns. *418; 20 Johns. 187; 6 Cow. 619; 1 Barb. 617; 12 Mass. 476; 3 Met. 275.
    Although a deed may operate as against the grantor by a presumed acceptance until a dissent or disclaimer appears, it then becomes inoperative and void. 2 Tent. 198; 3 Prest. Abst. 104 ; 6 Watts & S. 331; 12 Mass. 476 ; 2 Wend. 317.
    What shall amount to a delivery or an acceptance of a deed, so as to pass title, depends mainly on the circumstances and intentions of the parties, and is a question of fact for the jury. 2 Barn. & Ores. 82; 2 Mass. 452; 5 Con. 555 ; 13 Pick. 75; 1 Penn. 32; 7 Ohio, part 2, 50.
    
      JR,. P. Spalding, for plaintiff in error in reply.
    Under the plea of accord and satisfaction it was not incumbent on the defendants below to show that Baldwin had a good title to all the lands described in his deed at the time of its execution and delivery. Reed v. Bartlett, 19 Pick. 273.
    If the party has a remedy to compel the performance, an accord with promise to perform is good. Comyn’s Digest, title Accord, b. 4.
    Such title as Frederick Baldwin had in the lands must of necessity have passed to the bank at the instant of delivery of the deed. The court erred in saying to the jury that no title would be transmitted from Baldwin of any portion of the lands, if the title to any part failed.
    . The deed was in the hands of the grantee, with the consent of the grantor, and with his intent that it should operate as a muniment of title to the grantee. This was a delivery in the law. “ In traditionibus chartarum non quod dictum,, sed quod actum est, inspicitur.”
    
    It was also error in the court to say that plaintiffs below need not reconvey to Baldwin such title as they might have received in the lands, if the title to any part was defective before commencing suit on the bond.
   Bartley, J.

The court of common pleas clearly erred in ruling that, under the circumstances and conditions stated in *the first request of defendants, no title would be transmitted from Baldwin and wife to the bank of any portion of the lands in the deed described. The deed was delivered by Baldwin and wife to the bank, through its authorized agent, who acknowledged the receipt of it. The condition affixed by the stipulation of the cashier did not affect the delivery of the deed, but applied only to the application of the land in satisfaction of the bond. The delivery of a deed by a grantor, and the reception of the same by the grantee, as such, eo instanti, passes the title to the grantee, so far as the grantor is capable of conveying it. It has been held that the delivery of a déed as an escrow must be to a third person ; for if the grantor delivers a deed to the grantee himself, to whom it is made as an escrow upon .certain conditions, the delivery is absolute, and tho deed will become operative immediately. Shep. Touch. 59; Moore, 642 ; Co. Litt. 36, a; 9 Rep. 137, a; Hob. 246.

Baldwin did not make Handy his agent, to hold the deed as an escrow for the bank; on tho contrary, he delivered the deed to Handy as the grantee, he being the representative of the bank. When a deed is delivered as an escrow, it is the grantor who proscribes the terms on which it shall pass to the grantee, and become operative as a deed. But here the delivery by Baldwin, the grantor, was absolute, and the condition was prescribed by Handy on behalf of the bank, and with express reference only to the application of the land in satisfaction of the bond. .

The first important step to be taken by the defendants to maintain their special plea, was to show the execution and delivery of the deed conveying the lands mentioned to the bank. And although Baldwin and wife, not having legal title to a small portion of the lands, conveyed only that part of which they were seized, yet the bank receiving the deed with covenants of warranty and seizin, may have so acted and treated the deed as to be estopped from denying that it was received in satisfaction of the bond. While the pleadings were not, perhaps, such as to allow the defendants to set up waiver of strict performance on their part, yet facts and circumstances in the conduct of the bank, which would amount to an estoppel to the bank from denying the satisfaction of the bond, might well have been insisted upon under the plea. And inasmuch as the bill of exceptions does not profess to contain all the evidence, this court can not undertake to say that the defendants were not prejudiced by such erroneous .ruling by the court.

Other errors are assigned for the reversal of the judgment, but the court do not deem it necessary to take time to consider them here.

Judgment reversed.  