
    Willard Fairbanks, Administrator, &c., versus Calvin Metcalf.
    Of the effect of the delivery of a deed, and when it shall be considered as an escrow.
    [Evidence is admissible to show that a deed was delivered subsequently to the date of it. — Ed.]
    In a writ entry sur disseisin, the demandant counted on his own seisin as administrator of the goods and estate of Asa Fairbanks, deceased, intestate, and a disseisin by the tenant.
    The tenant, with James Adams, admitted to defend, &c., plead the general issue, that Metcalf did not disseise, &c., which is joined by the demandant.
    At the trial of this issue before Sewall, J., at the last March term in this county, the demandant gave in evidence a writ of attachment in his suit, as administrator, for a demand due to the estate of his intestate, against the said Metcalf, the writ being tested the 12th of January, 1810, with a return upon it dated 8 o’clock in the evening of the same day, of certain real estate, including the demanded premises, attached as belonging to the said Calvin Met-calf. The demandant, having recovered a judgment in the said * suit, sued out his execution thereon, and caused the same to be levied upon the demanded premises on the 23d of May, 1810.
    The defendants on their .part relied on a deed and conveyance of the premises made by the said Calvin Metcalf to the said James Adams, respecting which the following circumstances were proved: —•
    In March, 1806, Adams being then a creditor of Metcalf, and surety for him in sundry notes and obligations given for his debts, it was agreed between them, that Adams should assume and become further liable for Metcalf's debts, to the amount of 2000 dollars in the whole. Thereupon Metcalf made and formally delivered the deed in question; but afterwards, according to the understanding and agreement of the parties, this deed was immediately placed in the hands of Nathan Woodward, one of the subscribing witnesses thereto, to be kept by him until a bond of defeasance could be executed on the part of Adams, or the said Woodward should be further directed by the parties. —At this time no statement was made, noi any adjustment ascertaining the amount of Adams's demands and' responsibilities; but he afterwards went on to assume, and to become responsible as a surety, for other debts of Metcalf. The deed accordingly remained in Woodward’s hands until the 10th oi January, 1810, when Adams and Woodward went together to Met~ calf, and, after some conversation respecting a bond of defeasance, which was made and destroyed, the parties agreed to have the deed acknowledged and recorded ; and thereupon Adams received the deed of Woodward, and handed it to Metcalf to have an acknowledgment taken and certified upon it. It was then about 8 or 9 o’clock in the evening of the 11th ; and before the delivery of the deed to him, Adams exhibited a schedule of debts and responsibilities, which he had paid or in which he was liable for Metcalf, to the amount of 2536 dollars 61 cents; and there was evidence at the trial, to verify this schedule, in all the particulars of it.
    *The value of the premises conveyed did not exceed 2200 dollars, and by several witnesses it was estimated below that sum. The fact of the execution of a deed, in 1806, by Metcalf, was known to several of his creditors, at the time or soon afterwards. But it was not generally known; although there was no evidence that any particular secrecy respecting it was enjoined or observed. No change took place in consequence of the deed while it continued in Woodward’s hands, respecting the possession or occupation of the premises conveyed; and there was evidence, that, in the course of that time, Metcalf offered the premises for sale, mentioning, however, that the proceeds were wanted, or would be applied to indemnify Adams. Metcalf had other real estate, not included in said conveyance. •
    The final delivery of the deed was occasioned, in part at least by the apprehension of the parties, that the demandant intended an attachment, and to break upon Metcalf, as it was expressed; and in consequence of the attachment, it was discovered that he had become insolvent, as to a large part of the demands existing against him.—The acknowledgment was taken by a justice of the peace at Metcalf’s house before day-light on the morning of the 12th of January, 1810; and the deed was immediately taken to the registry of deeds, and is certified to have been received on record at half past 9 o’clock in the morning of the same day.
    The judge was of opinion, that the deed in question had effect from the final delivery, acknowledgment, and registry of it in January, 1810; if it was then a Iona fide deed, for a valuable and adequate consideration; which the jury might reasonably conclude from the evidence before them; and they found a verdict for the defendants, subject to the opinion of the Court upon the foregoing facts reported by the judge; the demandant moving for a new trial for the misdirection of the judge.
    
      * The cause stood continued upon the said motion, and at this term was argued by Richardson and Metcalf for the demandant, and Hastings for the defendants.
    
      Metcalf
    
    After a deed of bargain and sale is enrolled, it cannot be averred by the parties, that it was delivered at a day subsequent to the date.  The analogy between the English statute of enrolments (Stat. 27, H. 8, c. 10,) and our statute of 178-3, c. 37, respecting the registry of deeds, is so strong, that the same doctrine must prevail here. 
    
    The object of both statutes was to give notoriety to alienations; and the same reasons, which estop the parties to a deed of bargain and sale in England, to show, after the deed is enrolled, that it was delivered contrary to its purport, operate in this state. Indeed the mischief of admitting such evidence is greater here than in England„ For here lands are at all times subject to the payment of debts ; so that creditors, as well as purchasers, might be deceived by the, records.
    The reason of this rule is not derived from that provision of the statute of enrolments, which requires the deed to be enrolled within a limited time; for at whatever time it is delivered, the enrolment must be made “within six months next after the date.” 
       So that showing a delivery after the date would not enable the parties to evade the limitation.
    Nor are enrolments records of a higher nature than our registry. Although they are made in courts of record, yet they are without doubt distinct from what are commonly understood by records of court; as they formerly were here, when the clerk of the county court was ex officio recorder of deeds. It will not be pretended that the records of deeds were then of a higher nature than they now are in the register’s office.
    Nor is the reason because the party in England is estopped by his acknowledgment to deny his deed;  which is not the case here. For acknowledgment is not an essential * prerequisite of enrolment of a deed. Its execution may be proved by witnesses.  And no distinction is taken, as to this point, between the cases. The reason given applies with equal force to both.
    But if the Court should be of opinion, that the defendants might well show a delivery of the deed after its date, still the deed took effect from the delivery in March, 1806. The report of the judge states that it was then formally delivered; and a deed operates from the delivery.
    This is conclusive, unless from the evidence it appears that it was then delivered as an escrow. This is to be ascertained from the testimony of the witnesses, and from inspection of the deed. — As to this point, the case of Wheelwright vs. Wheelwright 
       compares with the case at bar; except that it does not there appear but that the deed was acknowledged at the same time it was executed. But after a deed is acknowledged, it takes effect from the delivery. 
    
    After enrolment a deed passes from the delivery.  A strong case to show this is cited by Littleton arguendo in Flower vs. Baldwin 
       —“ If a bargainee hath a wife, and dies, and afterwards the deed is enrolled, the wife shall have dower, as was resolved for the wife of Baron Freville.”
    
    That a deed after acknowledgment passes by relation from the delivery, is a necessary effect of that clause of the statute of 1783, which provides that when a grantor refuses to acknowledge, is removed out of the government, has gone beyond sea, or is dead, before acknowledgment,-—then proof of the execution of the deed, in manner there pointed out, “ shall be equivalent to the party’s own acknowledgment.”
    The delivery in this case was to the party ; and therefore not an escrow, even if it had been so intended. 
    
    
      Woodward, must be considered as trustee of Adams; and had the latter obtained the deed at any time after its executian *and delivery, it would have been the grantor’s deed, and Adams would have had a complete title to the land against Metcalf and his heirs. 
    
    Further, if the deed took effect from the first delivery, it was fraudulent and void as to the creditors of Metcalf; because it was on a trust between the parties, and possession did not accompany and follow the deed. 
    
    Again; if the deed took effect from the final delivery, still it was fraudulent and void, as against Metcalf’s creditors. The report of the judge states that Adams “ had become responsible as surety,” and that some part of the debts, for which Adams had become responsible, have since been satisfied by a levy on Metcalf’s property. It does not appear how much Adams had paid. That the parties intended that Metcalf should pay some part of the debts, for which Adams had become responsible, is evident from the bond of defeasance, and from the value of the land conveyed being less than the amount, for which Adams had become responsible.
    In this state of the business, it was practicable for Adams to have gotten the whole estate conveyed to him for nothing, and for a part of Metcalf’s creditors to have been defrauded of their demands. It is humbly presumed, then, that the direction of the judge "was not warranted by the evidence, viz., that the jury might reasonably presume that the deed was bona fide, and for a valuable consideration.
    
      Hastings.
    
    The deed had its effect only from its delivery in January, 1810, when it was regularly acknowledged, and immediately registered. The formal delivery in March, 1806, had no operation, since it was previously understood and agreed that it should not remain with Adams, but forthwith pass into the hands of a trustee, who was to retain it in possession, until a bond of defeasance should be executed, or further directions, as to its disposal, be given by the parties jointly. It was, then, to all intents, an escrow in Woodward’s hands; and neither of the facts having occurred before January, 1810, by which its situation and nature were to be changed, it continued an escrow, and inoperative, * during the whole intermediate time. There was no fraud in the transaction; for, until the morning of the 12th of January, 1810, the estate conveyed was liable to attachment at the suit of any of Metcalf’s creditors. And when the deed finally had its effect, Adams’s demands much exceeded the value of the land conveyed; and this accounts for the destroying of the defeasance.
    The English decisions, that a delivery of a deed of bargain and sale cannot be averred as taking place after the date, have arisen from the provision of the statute of enrolments, that such a deed must be enrolled within six months from its date ; and they have no application here, where by law a deed may be registered at any time, and in the interim is good against the grantor and his heirs, and all after purchasers with notice. Besides, the question of fraud was very properly referred to the jury, who have negatived it, although it was strongly urged upon them by the demandant’s counsel at the trial. If the Court shall think, as there seems abundant ground to think, that the verdict is according to the justice of the case, under all the circumstances, they will not send it to a new trial, by which there is a chance that injustice may be done.
    
      
      Richardson, in reply.
    Although Metcalf’s creditors were not actually delayed and defrauded by the existence of this deed from 1806 to 1810, yet they might be deceived by Metcalf’s - continuing in possession, and thus possessing a false credit, while Adams’s demands were accumulating upon the faith of the deed. It was fraudulent, again, as it was at last delivered; inasmuch as those creditors, to whom Adams was responsible, might obtain payment from other parts of Metcalf’s estate, which it appears that he had. Metcalf may, for aught that appears to the contrary, before this, have discharged all those responsibilities; and then the deed forms a secret trust and confidence for his benefit, and to the defrauding of his other creditors ; or Adams will retain the land, without consideration and against conscience, to his own benefit.
    
      
      
        Owen, 138, Howard’s case. — 1 Leon. 183, Holland & Franklin’s case.— Com Dig. tit. Bargain and Sale, B. 10. — 2 Rep. 4, Goddard's case.
      
    
    
      
       2 Inst. 670. — 4 Mass. Rep. 541, Pidge vs. Tyler & Al.
      
    
    
      
       2 Inst. 674.
    
    
      
       1 Salk. 280, Smartle vs. Williams.
      
    
    
      
       1 Salk. 389, Taylor vs. Jones.
      
    
    
      
      
        2 Mass. Rep. 453.
    
    
      
       1 Cranch's Rep. 239.
    
    
      
      
        2 Inst. 674.
    
    
      
      
        Cro. Car. 217.
    
    
      
      
        Co. Lit. 36. — 9 Rep. 137, Thoroughgood's case.— Cro. Eliz. 520, Whyddon's case. — Ibid, 884, Williams vs. Green.— Cro. Jac. 85, Blunder vs. Wood. — Hob. 246, Holford vs. Parker. — 6 Mod. 218, Bushell vs. Pasmore.
      
    
    
      
      
        Wheelwright vs. Wheelwright.
      
    
    
      
       3 Rep. 80, Twyne’s case. — 2 Vern. 261, Hungerford vs. Earle. — 2 D.& E 594, Edwards vs. Harben —1 Cranch's Rep. 310, Hamilton vs. Russel. — Roberts on Fraud Corn). 554, 555.
    
   * After the argument, the action stood continued nisi for advisement; and at the following March term in Suffolk, the opinion of the Court was delivered as follows, by

Sedgwick J.

This is a dispute between two honest men, both claiming to derive a title to the land in controversy from Calvin Metcalf, which, it is agreed, once, and until a title vested in one of the parties in controversy, belonged to him. These parties are Fairbanks, the demandant, and James Adams, who is admitted by consent to defend the action.

The demandant claims under the levy of an execution, regularly made on the land in controversy; which was attached on the 12th of January, 1810, at 8 o’clock in the evening. Adams claims under an absolute deed in fee simple of the same land, duly acknowledged and recorded on the same day; which deed was received by the register at half past 9 o’clock in the morning.

As the title under the deed was completed previous to the attachment, it must be effectual, provided the deed was a good deed, valid as against the creditors of Metcalf; and, on the contrary, if that deed is fraudulent, the demandant is entitled to recover.

The deed was made and dated in March, 1806. At that time Metcalf was indebted to Adapts, who was also surety to several of Metcalf’s creditors for his debts; and it was intended that the deed, although absolute in form, should operate as a security for the debts due to Adams, and for his responsibilities for Metcalf. For this purpose it was to be put into the hands of a third person, to be kept by him until an adjustment should be made, and a bond of defeasance executed by Adams; or until further directions should be given by the parties. In pursuance of this agreement the deed was made, and in form delivered to Adams; but immediately afterwards, according to the understanding and agreement of the parties, it was placed in the hands of Woodward, one of the subscribing witnesses So the business continued until the 11th of January, 1810, * when a final adjustment between Adams and Metcalf was made; on which it appeared that Adams had paid, and was liable to pay, for Metcalf, a sum more than the value of the land conveyed. At that time the deed was redelivered by Woodward to Metcalf, by him delivered to Adams, and on the next day acknowledged and registered, as has been mentioned.

By the attachment referred to in the report of the judge, it appears that the debt due to the demandant was an existing debt at the time of making the deed; and if Adams can avail himself of nothing but what then took place, if the delivery of the deed was absolute, and if what has since taken place has not given validity to the deed, it is manifest that it must be considered as fraudulent and void, as against the extent of the demandant’s execution; because Metcalf continued in possession; because there was a trust and confidence between the parties; and because it was intended that the deed should operate differently from its import—that it should be conditional, and not absolute.

On the part of the demandant it is contended, that the delivery in 1806 was absolute, being made to the grantee; — and on the part of Adams, that that delivery was controlled by the manifest intent of the parties, and that the deed was, accordingly, then delivered as an escrow.

That the delivery of a deed should operate as an escrow, it is necessary that it should be made to a stranger, and not to the party ; for if one make a deed, and deliver it to the party to whom it is made, as an escrow upon certain conditions, in such case, let the form of the words be whatever it may, the delivery is absolute, and the deed shall take effect presently as his deed ; and the party to whom it is delivered, is not bound to perform the condition; for in traditionibus chartarum, non quad dictum, sed quad factum est, inspicitur.

The question then is, whether, from the facts appearing in this case, the delivery of the deed in 1806 was made to Woodward or to Adams. If to the former, it was an escrow; — * if to the latter, it was absolute, and the deed then took effect.

There can be no doubt what the intention of the parties was. It was their intention and agreement that the deed should operate as an escrow. The deed was not at that time to become absolute. It was not then to go into the possession of Adams. But, on the contrary, it was to be placed in the hands of a third person, by him to" be kept until an adjustment should be made between the parties, and a defeasance executed by Adams, or until further directions should be given by the parties. When, however, Metcalf sealed it, he delivered it into the hands of Adams; but it was immediately afterwards, in conformity to the understanding and agreement of the parties, placed in possession of Woodward. Now, the plain sense and justice of the case requires that the deed, while in the hands of Adams, should be considered as in transitu to the possession of Woodward, — as much so as if words to that effect had been pronounced by Metcalf at the time. The agreement had been previously made, and subsequently the delivery in conformity to it; and I think that, according to the facts, Adams is to be considered as merely the instrument or agent of Metcalf, to deliver the deed to Woodward, according to the intention and agreement of the parties, as an escrow.

One of the requisites to constitute a deed is the delivery. If the delivery of this deed in 1806 was merely as an escrow, as the conditions on which it was delivered were never performed, it was of no more force, than if Metcalf had made it, and had never delivered it at all. The consequence of this is, that when it was, in 1810, redelivered by Woodward to Metcalf, it was precisely as it would have been, if Metcalf had always retained it in his possession. It had no validity. It was competent to him to destroy it; or he might do what he did, — deliver it; and in that case, like other deeds, it took effect from its delivery. And as the jury have found that the deed was made bona fide, and for a valuable and adequate consideration, (and indeed * there does not appear to have been any evidence from which the jury could have drawn a different conclusion,) the consequence is, that by the acknowledgment and registry of the deed, previous to the attachment by the demandant’s writ, the title of Adams to the demanded premises is proved.

There is no doubt that, in this commonwealth, the delivery of a registered deed, subsequent to the date of it, may be proved, whenever the facts will authorize, and the justice of the case requires it. The authorities in England which have gone on the principle that, in the case of an enrolled deed of bargain and sale, the parties should not be permitted to show that the delivery was on a day subsequent to the date, were influenced from the wording of thg statute of enrolments, which requires that the deed should be enrolled within six months from the date.

Judgment on the verdict.  