Page:Notes to Clark on contracts (IA notestoclarkonco00graviala).pdf/12

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  1. with an intimation that in England it is not only "old" but obsolete. But the old rule still prevails in most of the States of the Union, and is now the law in Virginia. Thus in Miller v. Fletcher, 27 Gratt. 403 (21 Am. Rep. 356), it is held that a deed, perfect on its face, cannot be delivered as an escrow to the grantee himself. But even in Virginia if on its face the deed is not perfect, then it may be delivered to the grantee himself as an escrow. See Wendlinger v. Smith, 75 Va. 309 (40 Am. Rep. 727). And though a bond is perfect on its face, it may, nevertheless, be delivered as an escrow by a surety who has signed it to the principal debtor; for this is not a delivery to the obligee, the creditor. Nash v. Fugate, 32 Gratt. 595 (34 Am. Rep. 780). But in such cases the surety will be bound if the principal debtor delivers the bond to the obligee, who has no notice of the unfulfilled condition. And in Humphreys v. R. Co., 88 Va. 43, it is held that a deed, though perfect on its face, may be delivered as an escrow to an officer of a corporation, to take effect on the performance of a condition by the corporation, citing Devlin on Deeds, Sec. 318, where it is said that there is no such personal identity between a corporation and its officers as will prevent a delivery to the latter as an escrow.
  2. What amounts to delivery of a deed? Clark, 53-4. See the great case of Doe d. Garnons v. Knight, 5 B. & C. 671, where A having written a mortgage in favor of B (who was not present, and knew nothing of the mortgage until after A's death) brought the mortgage into the presence of his (A's) niece, and signed and sealed it, saying: "I deliver this as my act and deed." Held, this was delivery, though A did not mention B's name, and though he (A) retained the possession of the mortgage, never, at any time, handing it to his niece. And afterwards A brought the same mortgage into the presence of his sister and said: "Take this, it belongs to Mr. B," delivering possession to the sister. Held, that this also amounted to a legal delivery. See this case approved in Virginia in Skipwith v. Cunningham, 8 Leigh, 271.
  3. What authority must an agent have in order to execute a deed in the name of his principal? Clark, 56, n. 41. The rule