
    *Lessee of Thomas Lloyd v. Aranda P. Giddings.
    What delivery of a deed is to he taken, as effectual, and what a mere escrow depends on the circumstances attending the delivery. A deed delivered as an escrow, can not he set up in ejectment, to show an outstanding title against the lessor of the plaintiff.
    In this cause the plaintiff proved title in his lessor, and thereupon the defendant, in order to show an outstanding title, called upon J. D. Webb, Esq., attorney and agent for said Lloyd, for the production of a deed of quitclaim of said land, in his possession, from said Lloyd to Simon Perkins, dated May 21, 1821; which .deed was produced by said Webb, and thereupon the defendant offered it in evidence, to which the plaintiff, by his counsel, objected ; and thereupon it was shown to the court that heretofore, to wit: On February 27, A. d. 1818, a suit of ejectment was commenced against the said defendant, for the recovery of the same land, by the lessee of Roger W. Ames, in which suit such proceedings were had, that at the September term of this court, a. d. 1820, a judgment was rendered in favor of the then plaintiff, and the said Giddings claiming the benefit of the occupying claimant law, a decision of commissioners appointed by the court was had, assessing the value of the improvements and of the land in a state of nature, and it was ordered that the said Ames elect whether ho would receive the value of said lands or pay for the improvements; and thereupon the said Lloyd, a resident of the State of Connecticut, who in fact was the owner in fee simple of said land, although at the time of said trial the counsel for both parties supposed the interest to be in said Ames, on the said May 21, 1821, inclosed said deed in a letter to said Perkins, that he, the said Perkins, might arrange the business in the best manner he could: adding, “you may let Giddings take it, if he will do no better, at the appraisement.” “ I must, therefore, request you to do the best for me that you can with Mr. Giddings. I suppose if he can not pay the money he must give up his claim.” It was further proved that said letter and deed was received by said Perkins some timo in June, A. n. 1821, who, on July 7; a. d. 1821, signed and sealed a deed of quitclaim of the same land to Aranda P. Giddings, and placed both deeds in the hands of said Webb, agent and attorney of said Lloyd, as aforesaid, to be made use of at his discretion. The deposition of Simon Perkins was read, which is as follows: “I find, among my papers, letters from Thomas Lloyd, in one of which he says that he inclosed to me a deed for lot No. 45, in township 8, range 2; his letter bears date May 18, *1821, and I find a deed in the hands of J. D. Webb, Esq., executed by said Lloyd, which conveys to me the land above described; and I have no doubt that the deed above described is the one which I received from said Lloyd in the letter above mentioned, and on which deed I have now written, Warren, July 8, 1835. I have no recollection of making a deed of the above-described land to any one; but in the hands of said J. D. Webb, I find a deed executed by me to Aranda P. Gidding, of that same land. My opinion in regard to these deeds is, that I received of Lloyd the deed, as stated within, to enable me to convey the land to said Giddings if he should be found to be entitled to it-; and supposing that he was, I made the deed for him, and delivered both to said Webb, to be made use of at his discretion. My opinion in regard to the transaction is, that it was all done for the accommodation of said Lloyd, that I did not buy the land, or at any time consider it as my own. A letter now inclosed, and on which I have indorsed July 8, 1835, I suppose to be the letter in which I received said deed.”
    It was further proved that both of said deeds were offered by said Webb, as agent of said Lloyd, immediately after their receipt, to said J. R. Giddings, agent and counsel of said Giddings, who refused to receive them and pay the value of the land; that said deeds have since remained in the sole possession of said Webb, agent as aforesaid, until this day called for on the trial of th:s cause, and neither of said deeds have ever been recorded.
    Under this state of the case the court overruled the plaintiff’», objection to said deed, and permitted the same to be read in evidence to the jury, and thereupon a verdict was returned in favor of the defendant. And on this state of facts the counsel for the-plaintiffs moves for a new trial, because the court erred in permitting the deed from Lloyd to Perkins to go in evidence, inasmuch, as the title was not thereby vested in the latter.
    Webb and Hitchcock, for the plaintiffs :
    There was no delivery of the deed to Perkins. It was transmitted to him merely as the agent of Lloyd. There was no bargain, no considerations, no intention to convey the interest in the land to Perkins. It was sent to him as a ^convenient mode of enabling him to perfect the arrangement with Giddings. But it may be argued that the delivery was intended as an escrow, and' that, as it could nqt be so delivered to the grantee, it inured to him. absolutely. But the case is not stronger than that of Fairbanks v. Metcalf, 8 Mass. 230, where there was an actual, formal delivery to the grantee in the first instance, and yet the court, in order that the intentions of the parties should not be disappointed, decided-that it was an escrow. Again, Perkins never accepted the deed-as vesting title in him, and the case of Jackson on Dev. Ten. Eye-.. v. Richards, 6 Cowen, 617, is directly in point.
    Giddings and Wade, for the defendant.
   Grimke, J.:

It is evident that there never has been a delivery of the deed; from Perkins to Giddings. Whether the deed from Lloyd to. Perkins was ever delivered is the material question. It is very clear what was the real nature of the transaction and the intention of the parties. Lloyd, instead of executing a power of attorney to Perkins, to enable him to convey to Giddings, makes a. conveyance direct to the former. This is a mode which is often adopted, neither party regarding themselves in any other light-than the one as principal and the other as agent in the whole-transaction. Are there any principles of law which will compel' us to disappoint their intentions? If a power of attorney had been given to Perkins he would have possessed a mere naked authority; but a conveyance is executed, naming him grantee,, and the case, therefore, rather resembles a power coupled with an interest, where any one deriving title under the power is considered as holding immediately of the person who created the power. But there is this difficulty in considering these instruments in this light, that the power is not contained in the deed to Perkins, but is attempted to be created by parol, of which, at any rate, a court of law can not take notice. Nothing is bettor settled than that a deed can not be delivered to the grantee as an escrow. The reason assigned is, that there is a manifest inconsistency between the declaration of a condition and the delivery. But this has not prevented the courts from limiting the extreme rigor of this principle in such a way as to prevent injustice from being done. Thus, in the Earl of Stair v. Murray, 2 B. & Cr. 82, when a bond was delivered by the *obligor as his deed, but both before and after the delivery it was agreed that it should continue in the witness’ hands until the death of certain individuals; it was held to be a question for the jury whether it was delivered to take effect from the time of delivery, or upon a condition that it was not to operate until the death of those persons. So in Fair-bank v. Metcalf, 8 Mass. 230, there was also an actual delivery to the grantee, who then placed the deed in the hands of a third person, to be delivered on a certain contingency; in pursuance of an agreement of the parties, it was held that the deed, although formally delivered to the grantee, yet under the circumstances, could only be considered in transitu, and did not operate to convey the land but upon the happening of the event contemplated by the parties. These are both very strong cases, much stronger than the one now before the court; and it will be observed that in both of these the grantee was ultimately intended to take the whole beneficial interest, and was not intended, as in the present instance, to be a mere agent to convey. Rules are necessarily made very broad and general in the early history of jurisprudence; but afterward limitations to them are found to be as indispensable as the rules themselves; and hence the good sense of the maxim, that there is no general rule without its exceptions.

There are matoy cases in which a grantee is considered as taking no interest under a deed. Thus, where a conveyance is made to A., and a mortgage is immediately executed to the grantor, or to ■a third person, the widow of A. is not after his death entitled to dower, because A. is regarded as a mere “ conduit-pipe or instrument” through whom another conveyance was to be made. Now, the evidence shows that the deed was delivered to Perkins for no other purpose than to enable him to make a conveyance to ■Giddings. To assert that the title was effectually transferred to him, would be to assert that his widow, after his death, would be •entitled to dower; and yet this is a proposition which could hardly be maintained with success.

There is still another view of the matter which is equally decisive. The acceptance of a deed is absolutely necessary to vest the grantee with title under it. No man can be compelled to take á conveyance against his consent. Now, Perkins says that he did not buy the land, nor never considered it as his property.

He received the deed, then, at the utmost, *as an authority to convey, and his authority is exhausted in an ineffectual effort •to accomplish this object.

The law, with regard to the delivery and acceptance of deeds, was once very plain, because it was very strict. But I take it to be now settled that what shall amount to either, depends very much on the circumstances and the intentions of the parties. Thus,In Clavering v. Clavering, 2 New R. 473, a voluntary deed of ■settlement in trust, made in 1684, always kept by the grantor in his custody, and found after his death among his papers, was held to control a subsequent settlement in 1690, and the same decision was made in Boughton v. Boughton, 1 Atk. 625. On the other hand, it has been equally settled that mere formal words of delivery will not, in all eases, be sufficient to render the deed absolute. This was so-decided in the'eases of Jack v. Dun, 1 Johns. Cas. 114, .and the Darby Canal Co. v. Wilmot, 9 East, 360.

It is evident that if it is possible to lay hold of any principle •of law, or of any adjudged case of authority to prevent this deed from operating to defeat the title of the plaintiff, that we ought to do so. And I believe enough has been said to authorize us to ■come to the conclusion that the deed' to Simon Perkins was not, .under the circumstances, effectual to convey the title to him, that it could not be used for the purpose of showing an outstanding title in a third person, and that accordingly there must be a new trial.  