
    BENJAMIN DIETZ, Plaintiff and Appellant, v. JOHN T. FARISH, Defendant and Respondent.
    
      HEAD-NOTE
    
    TO
    
      GENERAL TERM DECISION.
    
    I. Evidence.
    
    1. Delivery of instruments so as to make them effective BETWEEN THE PARTIES.
    
      (a) Conclusive evidence of—what is not.
    
    1. Possession of an instrument under seal, is not.
    3. Certificate of commissioner of deeds or notary public of proof of execution and delivery by subscribing witness is not.
    3. Conjunction of possession and certificate is not.
    
      (a) Rebutting.—The inference of delivery arising from such possession, or certificate, or both, may be rebutted. 1. Example.—A contract for the sale and purchase of land was drawn out in duplicate, and the vendee, having signed both parts, handed them to the vendor for his signature, who, after having signed them, handed them to one P., to be signed by him as subscribing witness. P. signed both as a witness. While the papers lay on the table before P. it was suggested that before any further steps be taken towards the consummation of the contract, the proposed contract should be laid before A., the vendee’s counsel, for his examination and approval. The suggestion was adopted and approved by the vendor. P. handed the duplicate forms of the proposed contract to the vendee ; the vendor and vendee went together to A.’s office. A. not being in, the vendee handed the two forms and his check for §2,000, to an attachee of the office, stating they were to be delivered to A., for his examination, and were not to be delivered to the vendor, unless A. on such examination approved of the contract. At this time a receipt for §2,000, by the terms of the proposed contract to be paid on its execution, which had been indorsed on one of the forms, was by mutual consent erased. Tire vendee then left. Shortly after, the vendor, being about to leave, asked the said attachee for one of the forms, saying it belonged to him; the attachee objected. The vendor insisted, saying it was, or would be, all right, and he did take it, and went away. Some time after, a commissioner of deeds called at P.’s house with the form thus taken, and took the proof of P., as to its execution and delivery, and indorsed thereon his certificate of such proof. P. at this time had no knowledge either that the proposed contract had not been consummated, or that the duplicate writing embodying . the same had not been duly delivered, or that any controversy touching the same had arisen. The contract was never approved of by A.
    HELD,
    
      no delivery.
    
    
      HEAD-NOTE
    
    TO
    ■ SPECIAL TERM DECISION.
    
    
      (b) WHAT WILL NOT AMOUNT TO SUCH DELIVERY.
    1. General principles.
    
      (a) Grantee's possession will not, where such possession was obtained through a delivery by the grantor, with the intent that the grantee should not take it as the deed of the grantor, nor receive it as grantee, but as the agent of the grantor for a special purpose.
    
      
      (c) WHAT WILL AMOUNT TO SUCH DELIVERY.
    (1) General principles.
    (a) Grantee's possession will, when such possession was obtained through a delivery by the grantor, with the intent that the grantee should take it as the deed of the grantor, and receive it as grantee, although thei'e are conditions attached to the delivery.
    
    
      (b) Grantor's possession.—Although he retains the custody, yet, if the usual formalities of execution take place, and the instrument under seal is to all appearances consummated without any condition or qualification annexed, and the acts of the parties clearly evince their intention to bo bound without a formal delivery, it is a complete and valid deed.
    H. Seal pi’opei'ty.
    
    1. Marketable title, what is not.
    
    
      (a) Location.—Where there is conflict of opinion among competent men as to whether the whole of the premises contracted to be sold fall within the description of the conveyances through which the vendor claims to derive title thereto, the title is not marlcetahle.
    
    1. Application of principle.
    
    
      
    
    Plaintiff has not a marketable title to this strip.
    Before Speir, Van Yorst, and Sanford, JJ.
    
      Decided November 4, 1878.
    This is an appeal from the judgment of the special term of this court entered on July 17, 1877.
    The action was brought to compel the specific performance of an alleged contract for the purchase and sale of a house and lot on the northwest corner of Madison avenue and Fifty-sixth street. The complaint was dismissed upon the merits.
    The court below made the following findings of. fact and law.
    “I. That a few days prior to April 36, 1875, the plaintiff and defendant commenced a negotiation for the purchase and sale of the premises described in the complaint, and that they met at the office of the defendant, in William street, in the city of New York, for the purpose of continuing the negotiation. Mr. George W. Pell attended as the friend and adviser of the defendant, who was and is somewhat deaf. There was also present Mr. Alexander R. Robertson, the defendant’s nephew. The price was finally agreed upon at fifty-eight thousand dollars—two thousand dollars of which were to be paid down, before the passing of title, on the consummation and delivery of the contract, which was to be in writing, and to be executed and delivered in duplicate. The plaintiff had brought to the office two printed forms of the proposed contract, and had himself written in each a description of the premises in question, but nothing more. The terms above mentioned having been settled, the two forms were passed to Mr. Pell by the plaintiff, who thereupon filled up the remaining blanks in the contracts with the terms of the- proposed sale. The plaintiff then signed each form, and handed both to the defendant for his signature. The defendant signed each form, and thereupon handed both to Mr. Pell to be signed by him as a witness to the signature of the parties. Mr. Pell having signed each as a witness, and while both lay before him in his possession, it was suggested by the defendant or by Mr. Pell (and the suggestion adopted and approved by the plaintiff), in substance that before any further steps were taken towards the consummation of the contract, the proposed contract should be laid before Mr. Humphrey S. Anderson, the defendant’s counsel, for his examination and approval; Mr. Anderson then and now being a member of the law firm of Messrs. Shipman, Barlow, Larocque & McFarland, of the city of Hew York.
    “ The plaintiff had recently purchased the premises at a foreclosure sale. The title of the premises had not been examined by or on behalf of defendant, nor was the defendant then in possession of any papers or documents relating to this property, or the title thereto, except the proposed forms of contract. The plaintiff and the defendant were strangers to each other, having only recently met in connection with this negotiation. The suggestion to lay the proposed contract before Mr. Anderson having been assented to, and the defendant having taken from his check-book a blank check in order to be prepared to pay the stipulated $2,000 down in the event of Mr. Anderson’s approval, the four persons above mentioned left the defendant’s office, Mr. Pell parting from the other three as they reached the street, and the plaintiff, the defendant and Mr. Robertson going to the office of Mr. Anderson, 30 William street, in the city of New York. Before separating from the others as above stated, Mr. Pell, in whose possession the duplicate forms of the proposed contract had up to that time remained, handed both to the defendant, who took possession thereof. On reaching Mr; Anderson’s office, the parties learned that Mr. Anderson was not in, but was expected soon to return. They were invited into Mr. Anderson’s office, where all three of them remained for some little time waiting for Mr. Anderson’s return. The defendant, having occasion to leave, expressed his intention not to wait any longer. Thereupon Mr. James R. Collins, the cashier and book-keeper of the said firm of Messrs. Shipman, Barlow, Larocque & MacFarland, having been called in, the defendant handed to him the said two proposed forms, and a check for $2,000, drawn by the defendant, and payable to the order of Messrs. Ship-man, Barlow, Larocque & MacFarland, saying to him that the same were to be delivered to Mr. Anderson for examination on his return, and were not to be delivered to the plaintiff, unless Mr. Anderson on such examination approved the contract. Thereupon, with the consent of the plaintiff and defendant, Mr. Collins erased or obliterated from one of the forms a receipt for $2,000, which had been written thereon and signed by the plaintiff. The defendant then went away, leaving plaintiff, Mr. Bobertson and Mr. Collins in Mr. Anderson’s office. Shortly thereafter, the plaintiff expressed his intention to leave, and asked Mr. Collins for one of these forms, saying that it belonged to him. Mr. Coffins objected to delivering either of them to the plaintiff, and called the plaintiff’s attention to the purpose for which they had been left with him by the defendant. The plaintiff, however, insisted upon taking one, that he said belonged to Mm, saying in substance that it was, or would be, all right, and he did take it, and then also went away. The form so taken by the plaintiff is the one on which this action is brought.
    ‘1II. Some time afterwards the paper so taken by the plaintiff aforesaid was presented to Mr. Pell, the subscribing witness thereon, for acknowledgment. The commissioner before whom the acknowledgment was made called at the house of Mr. Pell, in the city of Hew York, in the evening, presented the paper to him and received the acknowledgment. Mr. Pell, at the time of making this acknowledgment, had no knowledge that the proposed contract had not been consummated; that the duplicate writings embodying the same had not been duly delivered, nor had he any knowledge that any controversy touching the matter had arisen.
    “III. That the said contract for the purchase and sale oí the premises in question was never concluded between the plaintiff and defendant; that the same was never approved by Mr. Humphrey S. Anderson, the defendant’s counsel, but on the contrary was disapproved of by him, and that the $2,000 were never paid over to the plaintiff.
    6‘IV. On the 15th of May, the plaintiff called at Mr. Anderson’s office and tendered to Mr. Anderson a deed of the premises in question, demanding at the same time the consideration money, viz.: $58,000. Mr. Anderson declined to receive the deed and pay the money demanded, on the ground that there was no existing contract between the plaintiff for the purchase and sale of the premises, and also on the ground that the plaintiff’s title to the premises was defective.
    “V. That the premises in question, as well as the premises for a considerable distance on each side of the premises in question, were originally a part of the common lands belonging to the mayor, aldermen and commonalty of the city of Hew York.
    “That in 1796 a map of said common lands was made and the said lands were laid out in lots thereon, by Casimir Th. Goerck.
    “That a strip of at least eight feet in width, of the premises in question, and extending the whole length thereof, is included in lot 77 of said common lands as laid out on said Goerck map.
    “ That by the map on file in the office of the comptroller, and known as Fifty-sixth street Opening, Benefit and Damage Map, confirmed by the supreme court, December, 1837, said strip of eight feet in width of the premises in question is laid down as the property of John Mason. Said strip of eight feet in width of the premises, being the first eight feet north of the northerly line of Fifty-sixth street as laid out and at present existing, belonged to lot 77 of said common lands ; also according to the following public and authentic maps accepted and acted upon by conveyancers generally, made at the instance of the said city and on file in the office of the comptroller and the street commissioner of said city, to wit, map of ‘ The Adjustment of the Boundary Lines of the Common Lands ’ on file in the said comptroller’s office; map of "the ‘New York common lands as surveyed and laid out into lots in the year 1796, by Casimir Th. Goerck, showing the same as affected by the avenues and streets laid out by the commissioners appointed by the legislature, resurveyed in the year 1822, by order of the corporation of New York, Isaac Ludlam, City Surveyor,’ and ‘Handel’s map, No. 8, between Third and Sixth avenues,’ No. 30, both of which last mentioned maps are on file in the office of the said street commissioner.
    “ That by deed dated the first day of November, A. D. 1823, and recorded in the office of the register of the city and county of New York, in liber 172 conveyances, page 234, on the 12th day of November, 1823, the mayor, aldermen and commonalty of the city of New York, conveyed said lot 77 to one John Mason.
    “ That the plaintiff claims to have derived title to the premises in question from the mayor, aldermen and commonalty of the city of New York, as being part of lot 80 of said common lands, through a deed of conveyance thereof, by the said mayor, aldermen and commonalty to one Kemp.
    “That no ev'iden e was offered on the trial of any deed of conveyance of said lot 77, or of any part thereof, by said mayor, &c., to any other person than to said John Mason, and no evidence was offered by the plaintiff of any title to the premises or any part thereof derived by him or his grantors from said John Mason, or from any one claiming title to said premises through him or through his heirs or assigns.
    “ The plaintiff, however, showed that Otto Sackersdorf, a civil engineer and surveyor of the city, made an actual survey for the purpose of determining the location of plaintiff’s premises, not only with reference to the location of lots 77 and 80 as shown on some of the maps above referred to, but also with reference to existing street lines ; that in making said survey, the said Sackersdorf started from a point on Forty-second street, which is conceded to be correct; and that upon such survey said Sackersdorf found that with reference to existing street lines, the southerly line of lot 80 of the said common lands runs south of the northerly line of Fifty-sixth street, as laid out and existing, and that the whole of plaintiff’s premises are included in and covered by lot 80.
    “In consequence of the conflict of opinion thus shown to exist among competent men as to location, the plaintiff, as the case stands, neither at the time of the alleged contract between himself and defendant, (but which contract I find not to have been concluded) nor at any subsequent time, had, nor has he now a marketable title to the premises described in the complaint.
    “Upon the foregoing facts I find as conclusions of law:
    “That the defendant is entitled to judgment dismissing plaintiff’s complaint upon the merits thereof with costs, &c.
    “I therefore decide and direct that the defendant have judgment against the plaintiff for the dismissal of the complaint upon the merits thereof, and for his costs and disbursements in this action.”
    Upon the findings, judgment was entered dismissing the complaint upon the merits.
    From this judgment plaintiff appeals.
    In the court below the following opinion was delivered.
    
      “ Freedman, J.—This is an action to compel the specific performance of a contract for the sale and purchase of real estate.
    “The defense is twofold : first, that the contract was never concluded, so as to be binding upon the parties ; and, secondly, if it was, that a defect existed in plaintiff’s title.
    ‘1 Upon these issues evidence was introduced by both sides, and upon such evidence several interesting questions of fact and of law arise.
    “As to the facts I shall only say, that upon a proper application of the rules which govern in the consideration of testimony, the evidence preponderates so largely in favor of the defendant, that he is entitled to have his version concerning the transactions constituting, as plaintiff claims, an execution and delivery of the contract adopted as the true one. So far as necessary, the facts thus established will be referred to hereafter.
    “As to the law, the learned counsel for the plaintiff strenuously insisted that in every aspect which may be taken of the case, there was in law a perfect execution and delivery of it, and that such execution and delivery could not be varied by proof of annexation of conditions.
    “ This claim, in view of the facts as actually determined, is a bold and startling one, and in consequence thereof, I felt induced to make, and did make, before coming to a conclusion thereon, a careful examination of the principles of law which govern in the matter of the execution and delivery of contracts. The conclusions at which I arrived after such examination, may be stated to be as follows :
    “A contract or agreement is the union of two or more minds in a thing done or to be done. In the language of some of the old writers, it is called ‘ a coupling or knitting together of minds.’
    
      “The assent of the parties must be mutual, reciprocal, and concurrent.
    “There must necessarily be some medium of communication, by which the union of minds maybe ascertained and manifested. Among men, this medium is language, symbolical, oral or written.
    “ In oral and symbolical communications, when the parties are together, the assent is mutual and the contract completed, when the acceptance of one party is announced to the other.
    “In written communications, and especially in cases where the law requires the assent to be evidenced by a writing, the writing must be delivered by the party to be bound thereby in such a manner as to deprive him of the right to recall it.
    “ The delivery may be by words without acts ; as if a deed be lying upon a table, and the grantor says to the grantee: ‘ Take that as my deed/ it will be a sufficient delivery ; or it may be by acts without words, and therefore a dumb man may deliver a deed.
    “The intent is the governing and controlling element in the determination of the question whether a contract has or has not been concluded in a given case. Established forms and ceremonies furnish useful indications of intention, but in themselves, and in the absence of mutual and concurring intention meeting in the same sense to the' same point and embracing the same subject matter, they are inoperative. This is a rule of universal jurisprudence, and applies to all classes of contracts.
    “Thus, although the mere consent of the parties is sufficient for the perfection of consensual contracts, nevertheless, if in agreeing upon a sale or any other bargain, they also agree that there shall be a formal act passed before a notary with the intent that the bargain shall not be deemed perfect until the notarial act is so likewise, the parties, though they may have agreed upon the terms, may recede before the act is complete (Pothier on Obligations, art. I. Ev. p. 110).
    ‘ ‘ Referring to the same principle under another title, Mr. Bell, in his very learned commentaries on the law of Scotland (7th° Ed. McLaren, Book III. part 1, p. 345), says: ‘ The plea of locus posnilentice is grounded not merely on the want of evidence of a- bargain, but on the want of ■ that perfect and full consent which stands contradistinguished from imperfect resolution or intention. The want of evidence may be supplied by a reference to oath; the want of the badge of full and perfect consent never can be so supplied. Such evidence may supply the loss of the document, after it has been completed as an irrevocable engagement; but it will not destroy the privilege of receding, where the irrevocable obligation has not been legally declared.
    “ In the case of a contract under seal or a deed, therefore, the locus pcenitentias, the opportunity of withdrawing from it before the parties are finally bound, exists up to the time of its actual delivery as a living obligation.
    “If the grantor do not intend that his deed shall take effect until some condition is performed, or the happening of some future event, he should either keep it himself, or leave it with some third person as an escrow, to be delivered at the proper time.
    “If he deliver it as his deed to the grantee, it will operate immediately, and without any reference to the performance of the condition, although such a result may be contrary to the express stipulation of the parties at the time of the delivery. This is one of the cases in which the law fails to give effect to the honest intention of the parties, for the reason that they have not adopted the proper legal means of accomplishing their object.”
    “ But it is only in cases falling strictly within the exception stated, that is to say, in cases of delivery of the deed with intent to part with it as a deed and for the benefit of the grantee, that the law, for reasons of public policy, fails to carry out the intention of the parties as expressed in the condition annexed to the delivery, and rejects parol evidence as to such condition (Worrall tx Munn, 5 IF. T. 229 ; Braman v. Bingham, 26 Id. 483; Cocks v. Barker, 49 Id. 107).
    “If, though there be a delivery to the grantee, the deed is delivered with the intent that the grantee shall not take it as the deed of the grantor, nor receive it as grantee, but as the agent of the grantor for a special purpose,—as for instance, for the purpose of transmitting it to a third person to be held by the latter in escrow,—the case does not come within the exception (Gilbert v. North American Fire Insurance Company, 23 Wend. 43).
    ‘ ‘ A deed may be deposited with the grantee or handed to him for any purpose other than as the deed of the grantor, or as an effective instrument between the parties, without becoming at all operative as a deed (Ford v. James, 2 Abb. Gt. of App. 159, per Grover, J. 163).
    “Formerly the law was that delivery in escrow must be to a stranger, and that if made J o the grantee’s authorized agent, the delivery has the same effect as if made to the grantee personally. But this rule has since been invaded by numerous acknowledged exceptions. Thus in Watkins v. Nash (L. B. 20 Eq. Gas. 262; S. C., 18 Moalds Eng. B. 781), Vice-Chancellor Hall had occasion to pass on the question of delivery in escrow to the solicitor of a party to the deed, and sustained the apparent intent of the parties against a strict construction of the technical rule, that delivery to the agent of the grantee cannot be in escrow.
    “It appeared that defendant’s solicitor, Skyrme, represented to plaintiffs that his client wished to pay off a mortgage, which the plaintiffs, as trustees, held on Hash’s estate, and at Skyrme’s request, to facilitate the transaction, as he said, they executed a reconveyance and delivered it to him expressly as an escrow, and took a writing declaring it to be such. Skyrme used the reconveyance to get the money from his client, which he appropriated, and then returned the reconveyance, pretending that the payment was not made.
    “ The vice-chancellor laid down the broad explanation of the old rule, that when a stranger was spoken of, ‘ What is meant is a delivery of a character negativing its being a delivery to the grantee, or to the party who is to have the benefit of the instrument. Moreover, the delivery to the solicitor of the grantee might be deemed a delivery to a third person for the benefit of all parties.’
    
      “ On the other hand, if the usual formalities of execution take place, and the contract under seal is to all appearances consummated without any conditions or qualifications annexed, and the acts of the parties clearly evince their intention to be bound without a formal delivery, it is a complete and valid deed, notwithstanding it be left in the custody of the grantor (Scrughan v. Wood, 15 Wend. 545, and cases there cited). Here again the law regards the duly authenticated intention of the parties, rather than mere ceremonial formalities. It even regards the mere possession of the document as a non-essential, but the decisive and conclusive evidence of the intention of the parties as the operative and controlling feature.
    “I think I have now sufficiently demonstrated for the purposes of the case before me, that, except where reasons of public policy intervene, it is the invariable policy of the law, in determining the question of the execution and delivery of a contract, to give full effect to the true intent and meaning of the parties, so far as the same can be ascertained from the surrounding circumstances, and that in this respect the law is in full accord with right reason, and substantial justice.
    “The claim advanced by the learned counsel for the ' plaintiff, that notwithstanding the agreement of the parties that delivery should take place upon the approval of the contract by counsel, the bare execution of it under seal,.so far as it was executed, imparted binding force to it, and is not only sufficient, but conclusive evidence of the existence of a valid contract, involves, therefore, a misconception of the true relations of legal principles.
    “At the time it was agreed between the parties to make the delivery of the contract, and the payment of the first installment required by it, dependent upon the approval of defendant’s counsel, it had not yet been delivered, either by words without acts, or by acts without words.
    “ It was still under the control of the defendant, and liis opportunity for withdrawing had not yet expired. Not even a qualified or conditional delivery had been made to the plaintiff. The defendant thereupon took both duplicates into his possession, and both parties proceeded to the office of defendant’s counsel.
    “ The latter not being in, both duplicates, together with a check for the amount of the first installment required to be made by the contract, were left by the defendant for his counsel, with instructions, in case of approval, to deliver one of the duplicates and the check to the plaintiff. The contract was never approved, nor were any of the papers handed by said counsel or with his knowledge or consent to the plaintiff. Hence there was no valid delivery. The mere fact that plaintiff, against the express understanding of the parties, managed to get hold of one of the duplicates, is not sufficient to enable him to maintain the action.
    “Nor can it avail the plaintiff that he succeeded in subsequently inducing Mr. Pell, the subscribing witness, to acknowledge before a commissioner the execution and. delivery of the instrument, when, as appears from the evidence, the said witness at the time of making such acknowledgment had no knowledge that the contract had not been concluded, or that the duplicates had not been duly exchanged, and was not aware that any controversy touching the matter had arisen, but had every reason to believe that a delivery had taken place. True, he should not have made the acknowledgment, unless he knew the fact to be as he stated, and his course in that respect is highly reprehensible.
    “But I do not see why the consequences of his unauthorized act should be visited upon the defendant.
    “Even the record of a deed, after acknowledgment, is only prima facie evidence of a delivery, and as such it may be rebutted (Jackson v. Perkins, 3 Wend. 308 ; Gilbert v. North Am. Fire Ins. Co. 33 Id. 43).
    “ In my findings I have set forth with great particularity all the circumstances touching the execution of the contract, its deposit in the office of defendant’s counsel, and the manner in which plaintiff got possession of the duplicate upon which he brought this action. •
    “ It is, therefore, not necessary to enlarge upon them here. Suffice it to say, that upon the facts as thus established, plaintiff has failed to show that the said contract for the purchase and sale of the premises in question was ever concluded so as to have any binding force whatever.
    “ In regard to the alleged defect in plaintiff’s title, I have come to the conclusion that upon the evidence as it stands, the plaintiff did not have a marketable title to the premises described in the complaint.
    “ The facts being as found, the case is not one for a specific performance. This relief is always discretionary, and wall never be granted except it be strictly equitable under all circumstances that it should be granted.
    “The defendant is entitled to judgment dismissing - the complaint upon the merits, with costs.”
    
      Sigismund Kaufman, attorney, and Lewis and George N. Sanders, of counsel, for appellant, among other things, urged :
    I. Under the evidence the delivery was complete (Lady Superior v. McNamara, 3 Barb. Ch. 378; Verplank v. Sterry, 12 Johns. 548 ; Kedner v. Keith, 15 Com. B. N. S. 42 ; Ward v. Lewis, 21 Hun, 520 ; Siegfried v. Tavain, 6 Serg. & R. 311; Hallenbeck v. Dewitt, 2 Johns. 404; Russell v. Croy, 12 Id. 427; Wheaton v. Fay, 62 N. Y. 283; Braman v. Bingham, 26 Id. 492 ; Bigelow on Estoppel [2nd Ed.] 241; Worrall v. Munn, 5 N. Y. 238; Cocks v. Barker, 49 Id. 110 ; Lawton v. Sayer, 11 Barb. 351; Zanor v. Wickeham, 2 H. of L. 296).
    II. Under the statute, it was only necessary for the instrument to “be subscribed by the party by whom the sale was made;” that is, by plaintiff (See 3 Rev. Stat. [Banks’ 6th Ed.] p. 141, § 158, and many authorities cited in foot-note 3, among others, Levy v. Brush, 8 Abb. Pr. N. S. 423-4; Tallman v. Franklin, 14 N. Y. 591-2 ; Ballard v. Walker, 3 Johns. 62-3, approved and cited in extenso in Justice v. Lang). According to the three following authorities considered together, the instrument, even if not operative as a deed, appears to be valid evidence, as a memorandum of the completed contract, under the statute, especially where there has been no objection raised to its admission. The especial attention of the court is directed to this interjected point, if they , should deem it necessary (Bowles v. Woodson, 6 Gratt. 78, 88; Parrill v. McKinley, 9 Id. 1, 6 ; Justice v. Lang, 30 How. 434-5; affirmed. 42 N. Y. 523-4).
    
      III. Three cases are cited in the special term opinion : Gilbert v. North American Fire Ins. Co., 23 Wend. 43. In this case, which was a suit between third parties as to a policy, it was allowed to be shown that the nominal grantee of the deed of the property insured had received the deed simply to deposit it with a third person as an escrow, which had been done, and there being no contest between the parties to the deed, parol proof was admissible in an action between third parties according to the settled rules of evidence ; but that case is criticised and disposed of in Braman v. Bingham, 26 N. Y. 492, where the eminent Judge Seldeh, delivering the opinion of the court of appeals, says : “But if the grantee had retained the deed, claiming that its delivery to him was absolute, and in a contest between him and the grantor, parol proof of a conditional delivery had been offered, I think the result would have been different. If I am wrong in this conclusion, the case discloses an avenue for the overthrow of titles by parol proof, which was supposed to be closed.” • This case is likewise distinguished in Cocks v. Barker, 49 N. Y. 110, where it is cited with Worrall v. Munn. Ford v. James, 2 Abb. Ct. App. Dec. 163. In this case it was a deed-poll, and the grantor’s attorney handed it to the brother of the nominal grantee to submit it to the grantee for his consideration, and the opinion properly says that this “ transaction between Edward I). James (the brother of the grantee) and Charles S. Spencer (grantor’s attorney), had none of the essential requisites of a delivery.” Edward merely acted as a messenger, and his brother refused to receive the deed. A comparison of this case with Worrall v. Munn (supra), shows that it is not in point at all. Watkins v. Nash, L. R. 20 Eq. Cas. 262. Here the deed was delivered to a solicitor, not authorized to receive it, and who gave an express writing that he only held it to be returned in two.days ; he returned it to the grantor, and took up his receipt, and the decision holds, that the solicitor came under the denomination of “ a stranger ” to whom a delivery in escrow might be made.
    ' IV. Defendant’s authorities are not in conflict with those of plaintiff. In Pym v. Campbell, 6 El. & B., the opinion was based on the fact that the instrument was not under seal. Davis v. Jones, 17 Com. B. 634. Contract not under seal (see p. 626) and opinion, says (p. 634): “It is competent for a party to show that it was delivered only as an escrow, which clearly does not apply to sealed instruments delivered to the party,— and the case of Murray v. Earl of Stair, cited in the opinion, was that of a bond delivered to third party as an escrow. Cocks v. Barker, 49 N. Y. 107. The misapprehension of defendant in citing this, one of plaintiff’s authorities, can only be appreciated when it is seen that it not only is in plaintiff’s favor, but moreover unites with Braman v. Bingham, 26 N. Y. 491, in distinguishing defendant’s authority, Gilbert v. N. Am. Fire Ins. Co. 23 Wend. 43, in favor of plaintiff, instead of approving it in the sense that defendant cites it, for it is cited as concurring with Worrall v. Munn, supra. Burrell v. Root, 40 N. Y. 496. Mere dicta from a dissenting opinion, and not in point at all. Hawkes v. Pike, 105 Mass. 562. Bather in plaintiff’s favor, for there the grantee was not present, and the opinion says : “No definite or specific formality is prescribed by law ; but it must be the concurrent act of the two parties from which it follows that it would have been complete if the grantee had joined, as in the case at bar. Wallis v. Littrell, 11 Com. B. 375. Not under seal. This decision is based on Pym v. Campbell (supra), and speaking of the writing not under seal, says, its suspension by oral agreement “is in analogy with delivery of a deed as an escrow,” showing clearly, by reference to the case of Pym v. Campbell, that if it had been a deed, the parties would have been estopped from denying the absolute delivery. Lindley v. Lacey, 17 Com. B. N. S. 585. Instrument not under seal. It likewise cites Pym v. Campbell (see p. 987). Graves v. Dudley, 20 N. Y. 77. The action was not between the grantor and grantee, but by bailor against his bailee for money deposited with him,—a third party and a stranger—to be returned upon condition, and was founded upon a written agreement. Again, there was no contract by deed between the parties—it was simply a deed-poll by another person, not a party to the action. Lastly—The plaintiff declined to accept the deed, without a proper acknowledgment, the validity of which he doubted. In the case at bar no question was raised by any one as to the form or validity of the contract, and no question was raised on the trial as to its sufficiency in any respect, either by the defendant or his attorney, who became witness, but simply as to the ability of plaintiff to comply with the contract he had made. It was beyond criticism, being drawn up by the experienced Pell.
    V. The plaintiff proved title under a referee’s deed under a judgment of foreclosure and sale, and possession under the deed. The regularity of the judgment of foreclosure and sale was admitted by the defense. The only attack made upon the title thus established is by the production of a deed from the city to John Mason, dated November 5,1873. This deed was only “ offered in evidence for the purpose of showing the subject matter of the discussion between Mr. Anderson and Mr. Levinger.” And its effect in evidence was limited to that, and could not be used for anything else (Codd v. Rathbone, 10 N. Y. 39 ; Williams v. Mech. & Traders’ Fire Ins. Co., 54 Id. 580 ; Coleman v. People, 55 Id. 81). There is no evidence that the city had title in lot 77 of common lands. There is no evidence that John Mason ever existed or accepted the deed, or went into possession. There is no evidence that John Mason’s heirs or grantees were not cut off by the judgment of foreclosure and sale, the regularity of which is admitted. The defendant offered in evidence certain maps—not one of which was proven to have been made from actual survey. There is no proof at all about them, except that the maps were produced from the comptroller’s office, or made by Holmes. The only real map of the premises was made by Otto Sackersdorf, civil engineer and city surveyor of twelve years’ standing, and employed in department of public works, from an actual survey, assisted by Mr. McLean, a city surveyor, and an assistant. The map of common lands, made by Goerck, coincides with the present street lines at the northeast corner of Forty-second street and Fifth avenue. The maps of Goerck, Randall and Ludlam, all coincide at the same initial point, to wit, Forty-second street and Fifth avenue. Starting from this point by actual measurement, these three surveyors ran their lines along Forty-second street to Fourth avenue, past Madison, to determine the point at which to turn up Madison avenue ; having-determined that point, they ran the line up Madison. On the Goerck map, the blocks, including streets, are laid out at two hundred and sixty feet to the block, while the actual block, as laid out, is two hundred and sixty feet ten inches. From Forty-second street to Fifty-sixth street there are fourteen blocks.
    Total calculated distance from north side Forty-second street to northerly boundary of lot 77, lands of John Mason, as laid down on Goerck map, fourteen blocks, at two hundred and sixty feet to the block, makes . . . 3,640 ft.
    Fourteen blocks as laid out, at two hundred and sixty feet ten inches to the block, makes.........3,651ft. Sin.
    A difference of .... lift. Sin. But the actual survey shows the northerly side of Fifty-sixth street to be north of Forty-second street . . . 3,651ft. 6% in.
    
      In other words, Randall laid out the streets ten inches a block wider from street to street than the same blocks as laid down on the Goerck map of common lands, which carried the northerly side of Fifty-sixth street eleven feet eight inches north of the southerly line of lot 80, the lands of John Kemp—the premises in question—and the same distance north of the northerly line of lot 77, the lands of John Mason, so that the premises in question are located eleven feet eight inches north of any part of lot 77, the lands of John Mason.
    Evidence of Sackersdorf: “Q. Have you run any lines on this map, to show where Fifty-sixth street could have been on the Goerck map ? A. Yes, sir; that green line shows where the Goerck map could have made it. Q. And the black line shows what? A. It shows the line according to Randall, or rather as 1 measured it on the ground, that is almost coincident with Randall, within one inch and five-eighths ; Randall makes that line one inch and five-eighths further north than we make it. Q. Had Fifty-sixth' street been laid out according to the old Goerck plan, would the center have come below the present northerly boundary of the street? A. The center would have been certainly south.”
    Since 1804, there has been no dispute about the title conveyed to John Kemp by the deed of the city to him, and there is absolutely no evidence that there is any one in esse who makes any adverse claim to the premises in question. In the description of the property sold by the referee to plaintiff, no reference is made to the common land lots 77 or 80, and there is nothing to show that the referee or his grantors claimed solely under a grant from John Kemp. The regularity of the judgment having been conceded, it was for the defendant to show title in some one else. The map of the premises made by Holmes located the house forty-nine feet south of lot 80; over forty feet more than the other maps would warrant. The learned judge below lias found that a strip of about eight feet in width of the premises in question, and extending the whole length thereof, is included in lot 77 of the common lands as laid out on the G-oerck map, and he bases his finding upon a map from the comptroller’s office, known as Fifty-sixth street opening, benefit and damage map, which the learned court says was confirmed by the supreme court, December, 1837, of which there is no evidence whatsoever. The map is dated in December, 1837, and was made solely for the purpose of apportioning the benefit and damage to adjoining owners on Fifty-sixth street, and not to determine any boundaries, and was not proven to have been made from an actual survey, or by a surveyor. An adjustment map of boundary lines, also not proven, and Isaac Ludlam’s map and -Randall’s map, none of which were proven to have been made from actual surveys. And the Randall map was never offered in evidence, and is not an exhibit in the case. That by a deed dated ¡November 12, 1873, the city conveyed lot 77 to John Mason, of which there is no evidence, the deed having been admitted for a special purpose and limited to that. The plaintiff claimed title under a judgment in rem, a decree of foreclosure and sale, and the regularity of the judgment being conceded, it remained for the defense to show an outstanding title in some one else who had not been made a party to the foreclosure suit, or who had not been cut off by some former proceeding. The referee’s deed makes no reference to any deed from the city to John Kemp ; the thing sold was under a decree condemning the rem described by metes and bounds. To defeat a title, thus obtained it is necessary to trace down from some superior grantor, an outstanding adverse title in some person in esse at the date of the decree of foreclosure and sale. The property is described as bounded by Madison avenue and Fifty-sixth street, and not limited by the lots of common land. The judgment is conclusive until set aside (Williams v. Amroyd, 7 Cranch, 423 ; Hudson v. Guestier, 6 Id. 281; Gelston v. Hoyt, 3 Wheat. 313). The learned court has found, as a matter of fact, that the actual survey made by Mr. Sackersdorf, plaintiff’s witness, was made by starting at a point on Forty-second street, which is conceded to be correct. This finding, which is supported by all of the maps, reduces the location of the premises to one of pure mathematics. Given, the fixed point, the northeast corner of Forty-second street and Fifth avenue, and the intersection of Madison avenue and Forty-second street, to locate the northwest corner of Fifty-sixth street and Madison avenue, with reference to boundary of lots 77 and 80 of the common lands. First ascertain the distance of said boundary from Forty-second street as laid down on Goerck map of common lands, there are fourteen lots at two hundred and sixty feet each, three thousand six hundred and forty feet, which is the exact distance from the north side of Forty-second street, to the common boundary of lots 77 and 80, common lands. But the north side of Fifty-sixth street, as actually laid out, is eleven feet eight inches north of this boundary line of lots 77 and 80. The north side of Fifty-sixth street running eleven feet eight inches north of the southerly boundary of lot 80.
    Distance by actual survey from north side of Forty-second street to the north side of Fifty-sixth street, as surveyed by Otto Sackersdorf, Mr.
    McLean, and an assistant surveyor,
    is............3)651 ft. 6% in.
    Calculated distance on Goerck’s map of common lands to northern boundary of lot 77, lands of John Mason, fourteen blocks at two hundred and sixty feet a block ....... 3,640 ft.
    Difference . . . . . . . 11 ft. 6% in.
    
      Which is the distance the premises in question are north of lot 77.
    Y. As a conclusion, the court found, not that the plaintiff did not have title to the premises, but by a confusion caused by unproved maps, that he did not have a marketable title. Which confusion is not based upon any fact in the case. The alleged defect in this title runs through every title of every lot of land from Forty-second street to Seventy-third street, and has existed since 1822, and if the finding of the court below be sustained, it will shake the very foundation of the titles of all the land included between those streets, and open the door to a flood of litigation, which will be without parallel in the history of our jurisprudence. From such a result it is the imperative duty of this court to defend its suitors. And the decision has already been the cause of great uneasiness and expense in the investigation of titles and making of surveys.
    Shipman, Barlow, Larocque & Macfarland, attorneys, and W. W. Macfarland, of counsel, for respondent, urged :—I.
    No contract of purchase and sale was consummated between the plaintiff' and defendant. 1. In the first place, it may be well to notice the peculiar idea which seems to be entertained by counsel for the plaintiff, that the mere possession by the plaintiff of a paper purporting to be a contract signed by the defendant is not only sufficient but conclusive evidence of the existence of the contract and the delivery of the appropriate evidence thereof, no matter how he became possessed of it. Scrugham v. Wood, and that class of cases are relied upon, in support of this proposition. That case (15 Wend. 545) merely affirms a principle antecedently well established, that the law regards the duly authenticated intention of the parties in such cases, rather than mere ceremonial formalities, and is in principle directly opposed to the notion above referred to. Hence, it was held, as it had many times before been held, that the formal and solemn execution of a deed, attended with the usual declaration by the grantor of its execution and delivery in the presence of a witness or of witnessess, is not rendered inoperative by the mere fact that the grantor retains possession of the document itself. The law regards the mere possession of the document as non-essential, but the decisive and conclusive evidence of intention thus indicated as the operative and controlling feature. Ward v. Lewis (4 Pick. [21 Mass.] 518), is in accordance with this principle. Cocks v. Barker (49 N. Y. 107); Worrell v. Munn (1 Seld. 229); Burrell v. Root (40 N. Y. 46), are all equally foreign to the question under consideration. In none of these cases was there any question about the due execution and absolute delivery of the deed. Assuming the delivery to have been absolute, the question was whether, in accordance with settled legal principles, it could be attended with qualifying parol conditions, and the contrary thereof was held. These cases may, therefore, be dismissed without further observation. 2. On the other hand, Gilbert v. North American Fire Insurance Co., a case cited with approbation in Cocks v. Barker (49 N. Y. 107), is precisely in point against the proposition of the learned counsel for the plaintiff (see also 23 Wend. 43; 2 Kent Com. 477 ; Addison on Cont. ch. 26, § 2 ; 1 Chitty on Cont. 20; Mactier v. Firth, 6 Wend. 103, 112; Pothier on Obligations, art. I. § 1, p. 105; § 11, p. 106; art. II. p. 110; Bell's Comm. Law of Scotland [7th Ed., McLaren, Book iii. part 1, p. 345 ; Addison on Cont. ch. 26, § 2, p. 937; Pym v. Campbell, 6 El. & Bl. 370; Poor v. Petch, 10 Exch. 613 ; Davis v. James, 17 Com. B. 13, 634; Lindley v. Lacey, 17 Com. B. N. S. 578; Wallace v. Little, 11 Id. 369; Hawkes v. Pike, 105 Mass. 560 ; 4 Kent Com. 454, 12 Ed.).
    
      II. If the contract had been perfected as claimed by the plaintiff, the defect in the plaintiff’s title would be a bar to his right to enforce a specific performance. (1.) This relief is always discretionary, and will never be granted except it be beyond doubt, and, in the strictest sense of the term, equitable, under all the circumstances, that it should be granted (1 Story’s Eq. [Redfield’s Ed.] §§ 742, 740, 758 ; Fry on Specific Performance, ch. I.). (2.) The seller must be able to offer the purchaser a spotless title, entirely free from blemish or any defect that may expose him to the least inconvenience (Chitty on Cont. Am. Ed. 1,496-7, and cases cited in the notes. See especially, Garnet v. Macon, 2 Brock. 185, 244; Hendricks v. Gillespie, 35 Gratt. 193-4). Having regard to this principle, the court will perceive that, according to the map of Holmes (who, whatever else may be said of him, is conceded on all hands to be a surveyor of the first ability and authority), the property in question is altogether on the land conveyed to Mason by the city as a part of lot 77 of the common lands. It should be borne in mind that this lot Ho. 77, as described in the deed, is two hundred and sixty feet in width, and not simply two hundred feet, as some of the lots are as described in deeds by the city. The court will also see that the titles to lots 77 and 80 have a common source, viz., the city. But passing by Holmes’s map altogether, and taking into account only the various authentic and public maps prepared by authority, acted upon and confirmed by the supremo court, of which maps one is the map under and according to which Fifty-sixth street, on which these premises are located, wras opened, and on which the benefits and damages on the opening of that street wero determined and confirmed by the supreme court—a strip of the premises in question, at least eight feet in width, running along the whole length thereof, and cutting off eight feet of the house, belongs to lot 77— the Mason lot—and not to lot 80. As to this strip of eight feet, all .the maps in all the public offices agree. (See Holmes’s map, pp. 136, 140 ; map of Fifty-sixth street opening, map of adjustment of boundary lines of the common lands, Randall’s map, 160; Ludlam’s map), prima facie, therefore, the plaintiff and those under whom he claims never had title to the premises which they undertook to convey. It is hardly necessary to observe that the burden of proof wTas upon the plaintiff to remove, if possible, this manifest defect in his title (1 Gr. Ev. ch. VII.).
    
      
       Note.—These propositions of the court below were approved of by Judge Van Voest ; but do not appear to have been passed on by the general term.
    
   By the Court.—Speir, J.

The defendant contends that a contract of purchase and sale was never consummated between the plaintiff and the defendant, and that, had the contract been perfected as claimed by the plaintiff, the defect in plaintiff’s title is a bar to his right to enforce a specific performance.

Where the trial is without a jury it is undoubtedly the duty of the court to take the responsibility of examining the evidence and to determine the facts. Evidence upon both issues was properly introduced by the parties and has been carefully examined. From all the testimony, as well as from the conduct of the parties at the time the papers were submitted for counsel’s perusal and approval, and when the plaintiff took into his own custody the duplicate copy on which the suit is brought, it is to my mind conclusively shown that the plaintiff never came into the possession of the contract through a delivery thereof by the defendant or any one authorized by him to make such delivery.

No addition to or variation from the terms of a written contract can be made by parol; but in this case the first defense is that there never was any contract of purchase and sale consummated. So far as necessary, the facts establishing this conclusion will be referred to hereafter.

The position taken by the plaintiff’s counsel is that a written instrument purporting to be a contract executed by the defendant under seal, in the possession of the plaintiff, is not only sufficient but conclusive evidence of the existence of the contract and evidence of the delivery thereof.

The production of a paper purporting to be a contract by a party with his signature attached, undoubtedly affords a strong presumption that it is his written contract, and if in fact he did sign the paper animo contrahendi, the -terms in it are conclusive and cannot be varied by parol evidence. But here it was conclusively proved that after the papers were signed by the parties in duplicate and the execution thereof witnessed it was inquired of the plaintiff if he had a good title to the property. He said “ he had bought it of a referee, and that was the best kind of title.” Upon the suggestion being made that the papers had better be taken to defendant’s counsel for his examination and approval they were accordingly, by consent of both parties, submitted to the counsel, and his approval was not had. Whatever took place thereafter cannot affect the legal status of the parties as fixed by the controlling facts. There was no formal delivery, either upon condition or otherwise, nor any intent that the defendant should take the contract as grantee of the premises until the examination and approval had been procured. Courts and juries will look upon defenses of this kind with suspicion unless there be good grounds to sustain them, but if it be proved that in fact the paper was signed with the express intention that it should not be a contract unless something else be done, the other party cannot fix it as a contract upon those so signing it (Payne v. Campbell, 6 El. & B. 379). Even though the plaintiff had put the duplicate contract, which he had taken away with him without right, upon record, it would be only prima facie evidence of a delivery, which might be rebutted (Jackson v. Perkins, 2 Wend. 308).

The defendant’s counsel urges that in this regard a broad distinction is to be taken between the delivery of a deed and an instrument in writing not under seal.

The principle is elementary, and can best be ascertained by reference to the early books. The doctrine is clearly stated in 1 Shep. Touch. 59: “Where the deed is delivered to a stranger, and apt words are used in the delivery thereof, it is of no more force until the conditions be performed than if I had 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” (Viner Abr. tit. Faits, O, pl. 4, 1 ; 2 Rolle, 25, 1, 40). The principle is laid down by Kent, Ch. J., in his earliest reported cases: Jackson v. Catlin (2 Johns. 258); Dunlap v. Jackson (1 Johns. Cas. 114), and see Gilbert v. North American Fire Ins. Co. (23 Wend. 43); Hindley v. Lucy (Com. B. 17 N. S. 578). This application of the text cited from the above writers is practically illustrated by the case at bar in all its features.

The case of Xenos v. Wickham (2 House of Lords, L. R. 17 N. S. 578) is cited as an authority for the plaintiff. A policy of insurance purported to be “ signed, sealed and delivered,” by two of the directors of an insurance company in the presence of their secretary, and according to the powers vested in the directors by the deed of settlement of the company, was taken as against the company to be conclusive that it was not only signed and sealed, but also duly delivered. The assured, in the case, had effected the insurance through a broker, and the company signed and sealed the policy and kept the possession of it, and the court held that it was not necessary that the assured should formally accept or take away a policy in order to make the delivery complete. He had a right to rely upon the policy in the company’s hands as a deed for his security. The broker desired that the policy should be canceled, which was done by the assent of the undérwriter, and it was held that this could not affect the assured, who had not, in fact, given the broker any authority to cancel the policy. The decision below was reversed, and as it appears upon just grounds; but the decision contains the exception, which, in my judgment, renders the case an authority for the defendant. The exception is embodied in the decision, which is: “A policy, signed, sealed and delivered, is complete and binding as against the party executing it, though, in fact, it remains in his possession, unless there is some particular act required to be done by the other party to declare his adoption of it.”

The case is not one for a specific performance. The relief calls to a great extent for the exercise of discretion, and will not be granted where there is a material variation between the terms of a contract, as alleged and as proven in regard to the subject matter of the contract (Philips v. Thomson, 2 Johns. Ch. 418 ; Finch v. Parker, 49 N. Y. 1). Besides, it appears that it was not in the power of the plaintiff to convey the premises to the defendant at the time of the commencement of the action, except subject to an outstanding mortgage.

Judgment should be affirmed, with costs.

Yah Yoest, J.,

The reasons assigned by Judge Freedmah in his clear and able opinion at1 special term, upon the facts found, justify the judgment rendered by him, and for those reasons, as well as those assigned by my brother Speir, the judgment should be affirmed.  