
    Hinman and others vs. Booth.
    Where a deed is delivered as an escrow, to become absolute on the execution of a bond by the grantee for the maintenance and support of a third pe rson during life, nothing can be claimed under it if the bond has never been executed, although such third person has died, and the grantee during his life provided him the necessary support.
    Where a plaintiff in ejectment, in his declaration, claims an undivided moiety of the premises, and on the trial shows title to only one-fourth, it is in the discretion of the judge at the circuit whether he will nonsuit the plaintiff for the variance, or permit him to take a verdict according to the proof; and if he permit a verdict to be taken, the court in hank will allow the plaintiff to amend upon terms.
    This was an action of ejectment, tried at the Chemung circuit in October, 1837, before the Hon. Robert Monell, one of the circuit judges.
    The plaintiffs were Michael Beardslee, Phineas Catlin, Guy Hinman, George T. Hinman and Mary Hinman. The declaration contained four counts: in the first count, the premises in question being thirty-eight acres of land, were claimed in fee by all the plaintiffs : in the second, Beardslee alone claimed three-fourths of the premises in fee, the same being undivided : in the third, Catlin alone claimed an undivided moiety of the premises in fee; and in the fourth count, the three Hinmans in their own names claimed an undivided moiety of the premises in fee. The premises formerly belonged to one Isaac Booth, and were sold under an execution against him and purchased by one Darling, who subsequently conveyed them to Jacob Swartwood and Elijah S. Hinman. Hinman died, leaving six children his heirs at law, three of whom were the Hinmans, the plaintiffs in this cause, and thus title was shown in them to one-fourth of the premises instead of one half, as claimed in the fourth count of the declaration. As to the moiety belonging to Swartwood, it appeared that in February, 1829, Swartwood executed a deed to Phineas Catlin of an undivided moiety of the premises, and delivered it as an escrow to one Darling, to become absolute and be delivered to Catlin on his executing a bond to the overseers of the poor of the town of Catharine, conditioned for the support of Isaac Booth during life. It was however agreed that Catlin should take immediate possession of the premises. In March, 1829, Catlin and the administrator of the estate of Elijah S. Hinman, demised the premises to A. & E. Shelton, who were to support Isaac Booth for the use of the premises, and they occupied the premises until the autumn of 1832. Isaac Booth resided with them until July or August, 1832, when he went to reside with his brother Elijah Booth, at whose house he died in October following. On the 15th October, 1832, just before the death of Isaac Booth, Swartwood conveyed his moiety of the premises to Elijah Booth ; the bond which was to have been executed by Catlin never having been executed. It also appeared, that on the 28th September, 1836, the three Hinmans named as plaintiffs in this cause executed a quit-claim-deed of the premises in question to Beardslee, one of the plaintiffs in this cause, he having previous to such deed claimed the premises under various .conveyances executed in 1832. The ouster in this case was laid in December, 1836, The jury, under the charge of the judge, found a verdict in favor of the Hinmans for one-fourth of the premises, in favor of Catlin for one moiety of ihe premises, and/or the defendant as to the portion claimed by Beardslee. The defendant asks for a new trial.
    
      J. A. Spencers for defendant,
    
      A. Taber, for plaintiff.
   By the Court,

Gowen, J.

The condition upon which Swartwood’s deed to Catlin was deliverable was never fulfilled. Catlin agreed to give a bond to the overseers of the poor conditioned to maintain Isaac Booth for life, and the deed was to remain as an escrow with Mr. Darling till that was done. This was a condition precedent, which never y/as waived by Swartwood; and, non constat, that the proper bond was ever even tendered. Indeed, the contrary appears ; and for this default Swartwood disaffirmed the contract to .convey, and deeded to Elijah Booth, under whom the defendant claimed. It was not enough that Gatlin or •the Sheltons upon his retainer did in fact maintain Isaac Booth for life. Swartwood had a right to this bond, and, ¿t seems, becoming tired of waiting for it, and being troubled .as he said in a business for which he got nothing, he therefore deeded to Elijah Booth, with whom Isaac was living at •the time.

The Hinmansit is conceded, had title to one-fourth of :the premises, but it is said that they cannot recover, because in the declaration the claim one-half of the premises. The first answer is, that the objection of variance was not made at the trial. But if .otherwise, we should now allow .the plaintiffs to amend on easy terms, rather than grant a new trial. The case of Holmes v. Seely, 17 Wendell, 75, 78 to 80, is not, as supposed, incompatible with such a course. Indeed, jt is expressly sanctioned by the cases cited at p. 80, and the opinion of the chief justice there. He thinks the verdict should be sustained in such cases by way of amendment, and not by simply overlooking the omission ; not by considering title admissible as a matter of absolute right where it varies from the undivided share claimed •in the declaration. The distinction is of value, so far at least as it gives the judge at the circuit such .control that fie may in his discretion exclude the proof, where he sees that •the defendant is surprised, or may be otherwise injured by She variance between the pleadings and evidence.

In this case there must be a new trial, unless the plaintiffs consent that the postea be so framed that the verdict shall be for the Hinmans as to one-fourth of the premises ip question, and, as to the residue, for the defendant.  