
    *Lessee of James Shirley v. Jeremiah Ayres.
    It is not essential to the validity of a deed, that it be actually delivered to, or ever pass into the hands of, the grantee.
    If delivered to a third person as an escrow, it will take effect immediately on the performance of the condition; and if necessary for the purpose of protecting the grantee against intervening rights, will be held to take effect from the time of its first delivery as an escrow.
    This is an. action of ejectment, reserved in the county of Allen.
    It was submitted to the court on the lust circuit in Allen county, and reserved for decision here, on an agreed statement of the facts.
    The premises in controversy are in-lot No. 9, in Wapakoneta, in the county of Allen. It is agreed that both parties claim title under the original proprietors of said town. These proprietors were Peter Aughinbaugh, Jonathan R. Wilds, Joseph Barnett, and James B. Gardner. Three of the proprietors executed a power of attorney to the fourth, Joseph Barnett, to sell and convey their interest in said town, which was recorded on June 14, 1833.
    On the 31st of-July succeeding, Gardner conveyed his individual fourth in the premises to said Wilds, Aughinbaugh, and Barnett, which deed was duly recorded.
    On March 14, 1833, in-lot. No. 9, was sold by Barnett, as the agent of the proprietors, to Elijah C. Case ; a part of the purchase money was paid in hand, a note taken for the balance, and a bond given to Case for a deed, on payment of the note and return of the bond.
    In 1835, Barnett executed a deed to Case, and left it in the hands of Yan Horn, to be delivered on payment of the notes and the return of the bond, the note being also with Yan Horn.
    *In June, 1835, Yan Horn delivered the deed and note to Elliott, with the same instructions he received from Barnett; and Elliott, a few days afterward, informed Case he was ready to deliver the deed, on the judgment of the note and return of the bond. Case paid him some money, and agreed to pay the balance and take the deed. Yan Horn afterward called and took the note, collected it, and in 1836 or 1837, told Elliott the note was paid, and to deliver the note to Gase, saying nothing about the bond.
    In 1841, some time in October, Case was at Wapakoneta, and Elliott told him he had the deed ready for him, but to which Case-made no reply. The same day, Case, and Shirley, the lessor of the plaintiff, left Wapakoneta, together, for Dayton; and, on their return, told Elliott that Barnett said he would burn the deed in their presence ; but Elliott refused, and the same day delivered the deed to the sheriff, to be recorded. It is admitted Shirley knew the deed was in Elliott’s hands, and that the same, by the sheriff’s direction, was placed on record.
    On December 15, 1838, Case assigned his interest in the premises to the lessor of the plaintiffs; and October 20, 1841, Barnett conveyed, by virtue of the assignment. On October 23, 1841, the deed was recorded at nine o’clock A. M., and at half past one o’clock p. m., of the same day, the deed to Case, made in 1835, was recorded. This is the plaintiff's title.
    
    On April 13, 1840, in-lot No. 9 was levied on by the sheriff, by , virtue of an execution issued on a decree for alimony obtained by Mrs. Case, against her hushar.d, and afterward sold to the defendant Ayres, on February 16, 1841, who holds by virtue of, and under the sheriff’s deed, and this is his title.
    
    E. Phelps, for the plaintiff.
    No argument for the plaintiff came into the possession of the reporter.
    *B. Stanton, for defendant:
    It is insisted, on the part of the defendant, that the deed was delivered to Yan Horn, and by him to Elliott, as an escrow, to take effect on the payment of the purchase money; and that, by the payment of the purchase money, before the sale by Case to Shirley, with notice, the title became absolute in Case, and was subject to levy by execution. 4 Kent’s Com. 454; 2 Stark. Ev. 477, note 1.
    For the purposes of justice and equity, the title shall relate back, and take effect from the time of the first delivery. Wheelwright v. Wheelwright, 2 Mass. 447; Hatch v. Hatch, 9 Mass. 293; Verplank v. Sterry and wife, 12 Johns. 545 ; Belden et al. v. Carter, 4 Conn. 66.
   Wood, C. J.

The law side of this courtis not the forum to settle the equities between these parties. If Shirley, by the assignment of the title bond, in December, 1838, obtained an equity which overreaches the lien of the levy which was made on April 13, 1840, and to which the sheriff’s deed relates, ho must assert it in a court of chancery. This assignment, however, bears date less than one month after Mrs. Case filed her petition for divorce and alimony, in the county of Ashtabula, and it might possibly be a tight fit, to answer favorably to such an equity, whether it was not acquired to defeat a decree for alimony, which might thoi’eafter be made?

The only question in this suit, as it is presented is, whether the deed to Case was delivered? If it was not, there was no legal title in Case, bn which the levy could attach, and Ayres took nothing by his purchase and sheriff’s'deed, that will enable him to defend in ejectment.

If there was such delivery, the levy was eighteen months ante- . rior to the conveyance to Shirley, and can not be affected by Shirley’s speed in placing his deed first on record, because he had full notice of the prior deed to Case. '

'--It seems to be supposed that there must have been an actual delivery of the deed into the hands of Case, to clothe him with the legal title; but it is not required. As a general rule, when an instrument is placed in the hands of a third person, as an escrow, it takes effect from the second delivery; but suph rule docs not apply when either justice or necessity requires a resort to fiction, in order to avoid injury; as in case of intervening rights, between the first and second delivery, it shall have relation back, and take effect from its first delivery, as an escrow. 4 Kent’s Com. 454.

It is also a rule of law, that a delivery to a third person, for the use of the grantee, without his knowledge, is valid, if he afterward assent to such delivery. 2 Stark. Ev. 477, n. 1.

To constitute a good delivery, the grantor must, it is said, do some act, putting it beyond his power to revoke. The delivery need not be to the party ; it may be to another jferson, with authority from the party, or to a stranger, for and in behalf, and to the use of the party, without authority; and, in either case, if unconditional, the deed will take effect instanter. 7 Conn. 503. If delivered as an escrow, when the condition is performed, it will, in many cases, take effect from the first delivery. 13 Johns. 285 ; 18 Johns. 554; 1 Johns. Ch. 28, and cases cited.

In Juno, 1835, the deed was in Elliott’s hands, to be given to Case when he paid the note and returned the bond. Case paid part, promised to pay the rest, and take the deed. The balance of the note was collected of Case, and Elliott was instructed to give up the deed, without anything said in reference to the bond. Elliott informed Case of this, but Case did not take the deed.

Can there be any doubt that the deed, thus in the hands of Elliott, is, for every legal purpose, in the hands of Case, and a valid delivery to Case? We think not.

Judgment for defendant.  