¶1*532The opinion of the court was delivered by
¶2There is, in reality, no serious question in the case before us. The deed, under which the defendants claimed, was of a prior date to that by which the plaintiff made title. But the'plaintiff insists that the deed to the defendant James B. Holman was not to be delivered, except upon the performance of a condition, — that is, the payment of a small sum of money. The deed was delivered on such assurance as was satisfactory to the agent, who was authorized to deliver the same; and if the sum was not paid, the defendant is liable therefor in a proper action; but as to him, Mr. Edson, the grantor, and the present plaintiff, the deed was delivered and recorded before the plaintiff took any conveyance from Edson; — and moreover, if the defendant was in the actual possession of the lot in dispute, the plaintiff had no title whatever to the premises.
¶3The judgment of the county court is affirmed.