¶1By the Court,
¶2The plaintiff was properly nonsuited. The note or instrument on which this action was brought, and the deed which was the consideration upon which it was given, were never absolutely delivered. The testimony of Dr. Scott is clear and explicit upon this subject. There was nothing like an absolute delivery of the deed, ei*313iher technically or according to the intention of the parties. The term delivery does not appear to have been used in the course of the transaction ; the papers were deposited with the witness, to be delivered when the parties should subsequently direct. The law upon this subject is well stated by Ch. J. Parsons, in Wheelwright v. Wheelwright, 2 Mass. R. 452. He says, “ If a grantor deliver any writing as his deed to a third person, to be delivered over by him to the grantee on some future event, it is the grantor’s deed presently, and the third person is a trustee of it for the grantee. But if the grantor make a writing and seal it, and deliver it .to a third person as his writing or escrow, to be delivered by him to the grantee upon some future event, as his, the grantor’s, deed, it is not the grantor’s deed until the second delivery. It is not necessary that the term escrow should be used when an instrument is delivered to a third person, in order to prevent its taking immediate effect. That term would perhaps evince more clearly and distinctly than any other the actual intention of the parties. But where such intention is indicated in any other manner, effect is to be given to it, unless the technical or legal phraseology employed by the parties renders it impracticable. What the nature of the delivery was, whether absolute or conditional, and what were the actual intentions of the parties, are always questions of fact to be settled by the jury, where the evidence leaves any doubt upon the subject. Vide Hatch v. Hatch, 9 Mass. R. 310. The cases seem to consider a declaration by the grantor, when he executes the instrument or delivers it to a third person, that he delivers it as his deed, as stongly indicating an intention that it shall take immediate effect. Such a declaration, however, is, I apprehend, but matter of evidence to be weighed in connection with the other circumstances in the case, in order to determine the real character of the" transaction. Doe, ex dem. Garnor, v. Knight, 12 Com. L. R. 351. 5 Barn. & Cres. 671. Jackson v. Rowland, 6 Wendell, 666. 6 Mod. 217. 3 Coke, 35, b. 36, a. Shep. Touch. 57, 9. 4 Cruise, 34, 5.
¶3In this case, the parties not only never intended that the instrument should take immediate effect, but the plaintiff ob*314tained possession of the note on which this suit is brought, with the declared intention and purpose of delivering it to the defendant to be destroyed., To permit him to enforce it under such circumstances, would be giving effect to a gross fraud.
¶4New trial denied.