
    The Commonwealth v. Selden. The Same v. Seddon.
    Decided, April 1st, 1816.
    1. Wills-Equitable Conversion- — Bequests to Aliens —Validity.—A testator beduea.thed to liis brothers David and James, (who were aliens,) “to be equally divided between them, the money arising from the sale of his land and other property, and from the debts due to him at the time of his death; and, as they resided in Great Britain, it was his will that his executors make remittances to them in bills of exchange, or in any other mode, as soon as they could.” This was adjudged to be a good devise, so that a sale and conveyance by the executors was eifectual to the purchaser; and that the land did not escheat to the Commonwealth in consequence of the testators dying without heirs.
    2. Deeds— Delivery — Sufficiency.—A deed of bargain and sale admitted to record on the acknowledgment of the bargainor in Court, without any actual delivery th ereof to the bargainee, was d elermined to lie good in law, as a deed delivered; the bar-gainee having entered upon the lana immediately alter the purchase; having paid a part of the purchase money; retained possession according to the bargain; and, upon being informed of the deed, approved thereof, and claimed title to the land thereby intended to be conveyed.
    3. Escheat — Inquest in Pavor oí Commonwealth — Ettecl. — The finding of an Inquest of Kscheatin favour of the Commonwealth will not take away the title of a purchaser claiming by a deed of bargain and sale, legally executed and recorded, before the Inquest was sealed; though without the knowledge of the bargainee until afterwards.
    These were two cases of appeals from judgments of the District Court of Fred-ericksburg, in which the questions were precisely the same, depending on special verdicts similar in every thing material.
    In each case, a monstrans <le droit was filed by the appellee to an inquisition of escheat returned to the District Court, the object of which inquisition was to vest in the Commonwealth a right to the lands of the Rev. Robert Buchan deceased, on a supposed failure of heirs. The special verdict in Selden’s case was as follows: — “We find that Robert Buchan, a citizen of the Commonwealth of Virginia, was seized and possessed of the lands in the inquisition and monstrans de droit mentioned, in his demesne as of fee, on the 12th daj of July, 1803, and, being so seized and possessed, did, on the same day and year, make his last will and testament, in writing, in these words,” &c, The clause on which the controversy turned was the following: — “I give and bequeath to my brothers David and James, to be equally divided between them, the money arising from the sale of the land and other property, *and from the debts due to me at the time of my death; and, as they reside in Great Britain, it is my will that my executors make remittances to them, in bills of exchange, or in any other mode, as soon as they can. I appoint doctor John M. Daniel and Benjamin James, Esq. executors to this my last will and testament.”
    The special verdict proceeds: — “And the said Robert Buchan thereafter died, without altering or revoking the same. We find that the same lands, in the said inquisition and monstrans de droit mentioned are the lands directed by the said Buchan to be sold after his decease; and that his brothers David and James are aliens and subjects of a foreign kingdom, neither of whom have ever been, or resided, in this Commonwealth. We find that, at the death of the said Buchan, he had no heir capable of taking or holding lands in Virginia; his next of kin and of blood being an alien. We find that the executors named in the said will duly qualified thereto, and, on the 20th day of March, 1804, having previously entered upon and possessed themselves of the said land in the inquisition described; and after having advertised the same for sale, did set .up at public auction, the land in the monstrans de droit described, which was struck out to the said Selden as the highest bidder, upon a credit of one and two years; and the said Selden immediately thereafter entered upon the said land, paid one hundred dollars in part of the purchase money, and has retained the possession of the land to the present period. We find that the said executors John M. Daniel and Benjamin James signed and sealed a paper writing, purporting to be a deed from them to the plaintiff, which paper writing we find in the words and figures following, to wit;” &c. Then the verdict proceeds: “that the said executors John M. Daniel and Benjamin Jones presented the said paper writing, purporting to be a deed as aforesaid, to the County Court of Stafford, where the lands lie, and having acknowledged the same, it was admitted to record: that, prior to the admission thereof to record, the said plaintiff Carey Selden had not been presented with the said paper writing, and did not know of its being admitted to record; that he had no knowledge of the execution of the same until after *taking the inquest by the escheator in the mon-strans de droit mentioned, but, when informed thereof, approved of the same, and claimed title to the lands thereby intended to be : conveyed to him by the said executors. We find that the said deed had never been delivered by the said executors to the said Selden, or seen by him before the inquisition aforesaid was sealed. We find that part of the purchase money hath been paid to the said executors, but not the whole. If, upon the whole matter, the law be for the Commonwealth, then we find for the Commonwealth; but, if the law be for the said Selden, then we find for him.”
    Upon this special verdict, the Court gave judgment in favour of Selden, and, on a similar verdict in favour of Seddon ; from both which judgments, the Attorney for the Commonwealth appealed.
    These cases were argued, in October, 1807, by the Attorney General for the appellant, and Williams and Randolph for the appellees, before Judges Eyons, Fleming, Roane, and Tucker. On the part of the appellant three points were contended for; 1st. That the lands of Robert Buchan escheated to the Commonwealth, and were not protected from escheat by his will — : 2d, That if the executors took a fee simple, it i should be considered as held by them in trust for the Commonwealth: — and 3d, That the papers purporting to be deeds to Selden and Seddon, never having been delivered to, or seen by them, before the inquisition was sealed, could not be a bar to the claim of the Commonwealth.
    In support of the first point it was said, there was no devise of the lands to the executors] but merely a power given them to sell, anjd that only from implication. There is a clear distinction between a devise to, executors of land to be sold, and a mere power to sell. In the former case, the profits until the sale go to the executors; in the latter not.  In the former, the descent is broken, and the estate vested in the executors until the sale; in the latter the descent is not broken, but the estate is vested in the heir at law; and if there be no heir, it must go to the Commonwealth by escheat,  According to 1 Bac. 133, the King Mas a title before office found: the inquest of office is necessary only to give possession. And *since the Commonwealth is entitled to all es-cheats Hereafter going to the King, it follows th¿t, immediately on the death of the tenant without heir, the right of the es-cheat vests in the Commonwealth.
    There.is not sufficient ground in this case for giving the executors an estate in fee by implication ; for it is a rule that such estate can be allowed to arise only by a necessary, and not a merely possible implication, or intention, in the devisor, 
    
    On the other side, it was insisted that, according to the evident intention of the testator, this was a devise of an estate in, fee to the executors, by necessary implication; for as they were to sell the land, it. must have been intended that they should convey it to the purchaser,  and not that such conveyance should be made by the heir: for, if no estate was vested in them, they could convey none.
    The descent was certainly broken by this devise. In Co. Litt. 236 a., it is said, that a devise of lands “tobe sold by executors, ” is the same as a devise “to executors to be sold.” In Yates v. Compton, 2 P. Wms. 309, the devise was “that his executors should sell his lands,” and invest the money m purchasing an annuity for Jane Styles; it was decided that the descent was broken. So, in case of a devise that the testator’s lands shall be sold by his executors for payment of his debts, it was holden that an interest in the land was given to the executors,  In 1 Bro. Ch. cases, 135, the testator having directed that all his estate in Kent should be sold forthwith, and, (after payment of several sums,) that the residue be vested in his executors for payment of debts, Lord Ch. Thuriow decided these to be equitable assets, and that the descent was broken.
    But, even admitting this to have been a naked power not coupled with an interest, the Commonwealth cannot take; for the executors have exercised that power, and the heir, if there was one, would be bound by it; for, even if the land descended to him, he could make no disposition, which would not be overreached *by the sale of the executors, who may sell notwithstanding his sale,  Indeed, according to the case in Co. Litt. if the executors released to the heir, such act is void, as not in conformity with the will. In like manner, the Lord, or the King, claiming by escheat, is precluded by the sale made by the executors. 
    
    In support of the second point, the Attorney General referred to his argument in the case of the Commonwealth v. Martin’s executors, which, together with that in opposition, need not here be inserted, the point in question being so fully discussed by the judges in their opinions in that case. 
    
    In support of the third point, it was contended, that the writing produced did not possess the essential requisites of a deed. There were no parties to it. The name of Seldcn was indeed in it; but he was not a contracting party; never assented to it; and knew nothing oí it until after the inquest was taken. It never was delivered to him at all, though it vías recorded in court upon the acknowledgment of the executors; for that was merely an act of theirs without his participation. If it was delivered as an escrow, the jury ought so to have found it; for the court can presume nothing in a special verdict.
    Delivery is absolutely necessary to perfect a deed. The verdict finding that a paper, purporting to be a deed, never was delivered, but assented to afterwards, does not make it a deed, but only a paper assented to, which was not a deed. We are here in a court of law, and the deed must have the legal requisites. Recording may be supposed equivalent to delivery ; but the law requires delivery, as well as recording. A deed, if delivered, is good between the parties, though not recorded. Recording is a strong- ground of inference that it has been delivered ; but, in this case, that inference is prohibited by the express finding-o£ the Jury that it never was delivered.
    '"'In opposition to this point, it was remarked that, if the executors had only a naked power, it was not necessary for the party purchasing, to have a deed; for he was in under the will, 
    
    But if a deed be necessary, the one found by the Jury is sufficient; being acknowledged in Court by the grantors; for, although the appellees might have reversed the order admitting it to record, or refused to take under it, no other person could impugn it. When he was apprized of, and saw the deed, he approved it, and claimed title. It had operation from the acknowledgment and delivery in Court. The question propounded to the bargainor in such cases is, “do you acknowledge this to be your act and deed, and deliver it as such?” He would therefore be estopped from saying that nothing passed by the deed to the bar-gainee.
    The object of executing and recording a deed is that every one may have notice of the person who should be tenant to the praecipe. The Jury find that the appellee entered on the land, and this deed (if one was necessary) gave him the legal estate.
    In 5. Co. Rep. 84 b. it is held that if a man delivers a writing as an escrow, to be his deed when certain conditions are performed, and afterwards the obligor or obligee dies, and thereafter the conditions arc performed, the deed is good; for there was a traditio inchoata in the life of the parties. This case proves that a deed, which is delivered, and is not complete, will be good by subsequent events, even though one of the parties dies before it is completed; and that the performance of the condition will relate back to the delivery. So, here, the appellee having accepted and claimed title under the acknowledgment in Court, a new delivery to him in person was not necessary; but such acknowledgment related back to the first delivery.
    But, even if it took effect from the time of assent only, all the authorities prove that the deed shall overreach the title, as well of the king, as of the heir. If the delivery be to a person pretending to be an agent, but not having authority, upon the principal’s approbation, the validity of the deed has reference to such delivery,  If then a deed which is void can by such an act be made good, a fortiori, a deed not void may be made good by the bargainee claiming title under it.
    "“"It is objected that it should have been delivered as an escrow. If that was necessary, the Court will adjudge the delivery to have been so intended; and then, when accepted, it will have relation, ut res magis valeat quam pereat. But, on this subject, the case of Wankford v. Wankford,  is decisive; from which it appears that an obligation delivered by A. to. C. for the use of B. is the deed of A. ’till B. refuses to accept it. So in Thompson v. Beach,  it is said that a grant of goods vests a property in the grantee, and the sealing of a bond to another, in his absence, makes it the bond of the obligee, immediately, and without notice.
    In reply to the argument in favour of the deed, the Attorney General submitted to the Court whether our Act of Assembly,  does not make a deed necessary, in order to pass the estate to the purchasef from the executors.
    The recording of the deed is not equivalent to delivery. In Epges v. Randolph,  the deed was re-acknowledged before witnesses, and recorded within four months after being executed the second time. The second execution of the deed (like the first) comprehended all its requisites, among which was delivery; but, here, that there was no delivery is expressly found.
    No decision having been pronounced, the causes were reargued in May, 1810, after the death of Judge Lyons, and again after the resignation of Judge Tucker.
    
      
       Equitable Conversion. — See monographic note on “Conversion and Reconversion’' appended to Vaughan v. Jones, 23 GratT. 414,
    
    
      
       Doeds — Delivery — Sufficiency. — In Roanes v. Archer, 4 Leigh 565, TtroKKR, P., delivering the opinion of the court said: “That, the acknowledgment of a deed belore witnessis, is sullicient evidence of delivery, would seem, perhaps, inferrible from the ease of Currie v. Donald, 2 Wash. 58. That such an acknowledgment belore a court, followed by a deposit of the deed with the clerk to be recorded, Is a sufficient delivery, although the deed was never actually delivered to the bargainee, provided he afterwards assented to it, is not a question now open to be examined. 11 was expressly decided in the case of The Commonwealth v. Selden. 5 Munf. 160. Indeed, no particular form or ceremony is necessary to make a, good delivery. It is sufficient if the grantor testifies his intention to deliver or put the deed into the possession of the other party.”
      See further, monographic note on “Deeds” appended to Fiott v. Com., 18 Gratt. 564.
    
    
      
       4 Bac. Abr. 281; 2 Burr. 1028, Lancaster v. Thornton; Co. Litt. 112 b. 113 a 236 a.
    
    
      
       2 Tuck. Bl. 244; Constn. of Virg. sect. 20.
    
    
      
       4 Bac. Abr. 288.
    
    
      
       Note. See Rev. Code, 1st vol. chap. 93. sect. 45. p. 166, quoted, as to tills point, by Mr. Randolph.
    
    
      
       See also 8 Viner 460, pl. 4; 8 Viner 459, pl. 9; 2 Vernon, 429, Cooke v. Parsons.
    
    
      
       8 Viner 465, pl. 24. Hardr. 419. Barrington v. Pincheon. See also 8 Viner 465, pl 22, land 462, pl. 1.
    
    
      
       8 Viner 458, pl. 2; 469, pl. 2, 3; Co. Litt. 265, 6; 10 Viner 149, pl. 3; 3 Bulst. 43.
    
    
      
       Hardr. 419; 10 Vlner 150, pi. 30, note. Leonard 260; Co. Litt. 150, Hargrave’s note.
    
    
      
       Note. As to this point, Williams said. “I shall not stop to inquire whether the Commonwealth has any equity, or whether she can call for execution oí the trust for her benefit. When that case is presented, it will be proper to consider it. This is a proceeding at common law.” — Note in Original Edition.
    
    
      
       Rev. Code, 1st vol. ch. 90, sect. 1, P- 156; 2 Tuck. Bl. 306.
    
    
      
       8 Viner 459, pl. 1, 2; Co. Litt. 265 b.; 1 Bro. Ch. cases 135.
    
    
      
       3 Co. Rep. 35 b; Goodright lessee of Carter v. Strapham and others, Cowp. 201-201.
    
    
      
       l Salk. 801.
    
    
      
       2 Salk. 618.
    
    
      
       Rev. Code 1st. vol. ch. 02, sect. 45.
    
    
      
       2 Call. 125-190.
    
   On the 1st of April, 1816, the President pronounced the Court’s opinion, that the judgment be affirmed.  