The Elements of the Law of Contracts

Escrow.

Time of

effect.

sion of the deed to a stranger for the use and benefit of the other party, the intention being sufficiently expressed; a delivery to a stranger without any explanation of intention would be inoperative (a). Delivery may also be effected by mere words expressive of intention, although the party making the deed retains it in his own possession (b). A delivery may be evidenced by an acknowledgment by the party whose deed it is that it is valid and operative (c).

The delivery of a deed may be made upon a condition, so that the delivery is not complete and the deed is not binding until the condition is fulfilled. A deed so delivered upon a condition is called an escrow (scriptum or writing) (d). The condition on which the delivery depends may be expressly stated at the time of executing the deed, or it may be inferred from the circumstances attending the execution (e). A delivery as an escrow may be effected though the party executing the deed retains it in his own possession, and it may be effected by delivery of the possession of the deed to a third party; but it is said that it cannot be effected by delivery of the possession to the party to whom the deed is made, because such a delivery is an absolute delivery if made without words, and if made with words purporting to control the absolute effect, the words are contrary to the act, and therefore of no effect, according to the maxim non quod dictum est, sed quod factum est inspicitur (ƒ).

A deed takes effect from the time of delivery. A deed is deed taking presumed to have been delivered and to take effect from its date; but it may be shown by extrinsic evidence that the deed was delivered and became operative on a different day from that on which it bears date (g). Thus, a deed of charter

(a) Co. Lit. 36 a; Shepp. Touch. 57, 58; Doe d. Garnons v. Knight, 5 B. & C. 671.

(b) Doe d. Garnons v. Knight, 5 B. & C. 671; and see Xenos v. Wickham, 14 C. B. N. S. 435; 31 L. J. C. P. 364; 33 ib. 13.

(d) Co. Lit. 36 a; Shepp. Touch. p. 58; Murrayv.Earl Stair, 2 B.&C. 82.

(e) Murray v. Earl Stair, 2 B. &

C. 82; Bowker v. Burdekin, 11 M. & W. 128; Gudgen v. Besset, 6 E. & B. 986; 26 L. J. Q. B. 36.

(f) Co. Lit. 36 a; Shepp. Touch. 59; but see Johnson v. Baker, 4 B. & Ald. 440; Hudson v. Revett, 5 Bing. 368, 387.

(g) Goddard's case, 2 Co. Rep. 4b; Taw v. Bury, Dyer, 167 b; Stone v. Bale, 3 Lev. 348; Hall v. Cazenove, 4 East, 477; Jayne v. Hughes, 10 Ex. 430; 24 L. J. Ex. 115; and see Reffell v. Reffell, L. Rep. 1 Prob. 139.

party was dated 6th February, and contained a covenant that the ship should sail on or before the 12th February, but the deed was not in fact executed until the 15th March; it was held that it might be averred and proved when the deed was in fact executed; and that the covenant for the ship to sail on a previous day, having then became impossible, formed no part of the contract (a).

Upon delivery of an escrow and performance of the condition the deed becomes effective from the date of the original delivery; so that if a bond is delivered as an escrow, and before the performance of the condition the obligor and and obligee die, yet on the performance of the condition it becomes an effective bond and charges the assets of the deceased obligor; and so, if a woman before marriage delivers a bond upon condition and afterwards marries, whereby she loses her capacity to contract, and after marriage the condition is performed, the bond is valid and takes effect from the original delivery (b).

of deed in

A deed executed in blank, that is, completely sealed and Execution delivered with an omission of a material particular, is void, blank. and cannot be made good by subsequently filling in the blank without a re-execution, or what is equivalent thereto (c). Thus, a bail bond executed originally without a condition, and having the condition afterwards inserted, was held void (d). A deed was executed referring to a schedule annexed, but the schedule was omitted; it was held that the deed was void without the schedule, and that the annexation of the schedule subsequently to the execution did not render it effective (e). By a railway Act the sale of shares was required to be by writing under the hands and seals of the parties; it was held that a deed was necessary, which must be complete at the time of delivery, and consequently an instrument executed by the vendor with the name of the purchaser left in blank, which was afterwards filled up by a third party to

(a) Hall v. Cazenove, 4 East, 477. (b) See Graham v. Graham 1 Ves. jun. 272, 274, citing Perryman's case, 5 Co. Rep. 846, and Froset v. Walshe, Bridg. 51.

Acceptance of contract

whom it was delivered for that purpose was void (a). Where a deed contained a blank for a sum of money intended to be afterwards ascertained and inserted, which was afterwards done with the assent and in the presence of all parties, the deed was held valid on the ground that there was no complete execution until the blank was filled in (b). An agent who is authorized to fill up and execute a deed which is previously incomplete, so as to render it effective, must be appointed by deed in the same manner as an agent appointed to execute a deed in the first instance (c). In a recent case in which it appeared that a person had executed a deed in blank and by his alleged negligence had enabled another person to fill it up and use it in an unauthorized manner, the opinion was expressed by some of the judges that he might be estopped by his conduct from denying the validity of the deed, as against the parties claiming under it; but the majority of the judges seemed to be of a contrary opinion, on the ground that the doctrine of estoppel did not apply to the execution of a deed (d).

The acceptance of a contract under seal is presumed, if under seal. nothing appear to the contrary (e). Hence a party may in general sue upon a contract under seal without having executed it (f). The presumption of acceptance is said to be founded on the principle that a man will accept that which is for his benefit; but it has been extended to the case of deeds containing onerous charges and liabilities on the part of the acceptor. In a recent case the Court in delivering judg ment said :—" Almost every conveyance in truth entails some charge or obligation which might be onerous in the way of covenant or liability; and we think it much safer that one

(a) Hibblewhite v. M'Morine, 6 M. & W. 200; and see Tayler v. Great Indian Peninsular Ry. Co., 28 L. J. C. 285.

(b) Hudson v. Revett, 5 Bing. 368. (c) Hibblewhite v. M'Morine, 6 M. & W. 200.

(d) Ex p. Swan, 7 C. B. N. S. 400 ; Swan v. North British Australasian Co., 7 H. & N. 603 ; 2 H. & C. 175 ; 31 L. J. Ex. 425; 32 ib. 273.

(e) See Thompson v. Leach, 2 Ventris, 198; Petrie v. Bury, 3 B. & C. 353, 355; Doe d. Garnons v. Knight, 5 B. & C. 671, 692.

(f) Rose v. Poulton, 2 B. & Ad. 822; Morgan v. Pike, 14 C. B. 473; and see Wetherell v. Langston, 1 Ex. 634, 643; British Empire Ass. Co. V. Browne, 12 C. B. 723; Northampton Gas Light Co. v. Parnell, 15 C. B. 630, and see post, p. 85.

general rule should prevail, than that the Courts should be asked in each particular instance if the deed may not be considered onerous, and that doubts should be raised as to the particular moment at which the deed operates by the assent of the grantee ” (a).

A party may disclaim the benefit of a contract under Disclaimer. seal (b). Such disclaimer may be made by any sufficient words or acts, and does not require any particular form or manner of proof (). It must in substance be clear and unequivocal (d). If a contract is made with two jointly and not severally, and one disclaims, the right to sue on it is not thereby vested in the other so as to entitle him to sue alone (e).

A deed poll is a deed made by one party only; an inden- Deed poll. ture is a deed made between two or more parties. An inden- Indenture. ture is so called because it was formerly the practice to make a part or original copy of the deed for each of the parties on the same parchment, and then to separate them by an indented division, so that on subsequently comparing the parts they might be identified by the fitting of the indented edges (f). A deed poll was so called because the edge was polled or cut even. By 8 & 9 Vict. c. 106, s. 5, it is enacted that a deed executed after the 1st of October, 1815, purporting to be an indenture, shall have the effect of an indenture although not actually indented.

The terms indenture, deed, or writing obligatory import a deed under seal (g). A statute required that certain contracts should be made in writing under the hands and seals of both parties; it was held that it was intended and required that they should be made by deed (h).

(a) Siggers v. Evans, 5 E. & B. 367, 383.

(b) See Butler and Biker's case, 3 Co. 26 b; Doe d. Garnons v. Knight, 5 B. & C. 671, 691.

(d) See Doe d. Smyth v. Smyth, 6 B. & C. 112.

(e) Wetherell v. Langston, 1 Ex. 634; and see Petrie v. Bury, 3 B. & C. 355; post, Chap. II, Sect. I.

(f) Shepp. Touch. 50; 2 Bl. Com. 295.

(g) See 1 Wms. Saund. 291 (1); Aveline v. Whisson, 4 M. & G. 801, 801; Phillips v. Clift, 4 H. & N. 168. (h) Hibblewhite v. M Morine, 6 M. & W. 200.

Covenant.

Bonds.

and bond

with condition.

A promise contained in a deed is called a covenant, also a special contract or contract by specialty; and the parties to a covenant are called respectively the covenantor and the covenantee.

A bond is a deed wherein a party acknowledges himself to be bound to another in a certain sum of money to be paid to him. It is sometimes called an obligation in a special sense of that word. The parties to a bond are called respectively Single bond the obligor and the obligee (a). A bond containing merely such acknowledgment is called a single bond; but there may be appended to it a condition that upon the performance of a certain act the bond is to be void, otherwise to remain in full force, and it is then called a bond with a condition (b). The debt acknowledged by the bond is commonly fixed at a larger sum than the equivalent of the condition, and so operates to secure its performance, and is called the penal sum or penalty.

Common

money bond.

Common money bonds are made subject to the condition to pay a sum of money with interest at a certain day, on payment of which at the day the bond is to be void, otherwise it is to be forfeited. In such bonds the penalty or sum acknowledged in the bond is generally fixed at double the amount in the condition. Any other matter may be made Bond with the subject of the condition, as the performance of the covenants in a deed, the faithful performance of an office by the obligor, or by a third party; such bonds are called bonds with special conditions.

special con

dition.

Relief

against

bond.

By the common law the whole penalty became forfeited penalty of and was recoverable upon breach of the condition, according to the literal meaning of the bond. The Courts of Equity, however, gave relief against the forfeiture at law, upon payment of the amount really due under the condition, or of the damages arising from the breach of the condition. A power of granting similar relief in certain cases has been given to the Courts of Law by statute.

Common money bonds with a penalty, which by strict law were forfeited by non-payment of the money ad diem according to the condition, are now subject to the statute 4 & 5

(a) Shepp. Touch. 367; 2 Bl. Com. 340.

(b) Ibid.

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