Escrow

It is admitted by the counsel in this case, that a bond cannot be delivered to the obligee as an escrow. But it is contended that where there are several obligees constituting a copartnership, it may be delivered as an escrow to one of the firm. The court, however, is of opinion that a delivery to one is a delivery to all.

The delivery of a deed or other instrument (31 111. 538), actually executed and ready for delivery -(42 Wis. 440) to a stranger to the instrument (13 Ohio St. 254), to be by him delivered to the person for whose benefit it is made, on the performance of a condition, or the happening of a contingency (90 Ala. 294), or to be redelivered to the depositor on failure thereof (24 Neb. 86).

Escrowe, escrovet, /. fr. A scroll, or writing; a mere writing, as distinguished from a perfect deed; a deed delivered to a third person to be delivered over to the grantee or obligee, upon performance of some act or fulfillment of some condition, and to take effect only upon such delivery over.

A scroll; a writing; a deed. Particularly a deed delivered by the grantor into the hands of a third person, to be held by the latter until the happening of a contingeney or performance of a condition, and then by him delivered to the grantee. A grant may be deposited by the grantor with a third person, to be delivered on the performance of a condition, and on delivery by the depositary it will take effect. While in the possession of the third person, and subject to condition, it is called an “escrow.” Civil Code Cal. § 1057; Civil Code Duk. § 609. The state or condition of a deed which is conditionally held by a third person, or the possession and retention of a deed by a third person pending a condition; as when an instrument is said to be delivered “in escrow.” This use of the term, however, is a perversion of its meaning.

' An instrument delivered to a third person to hold till some condition is performed by the proposed grantee. A scrowl or writing not to take effect as a "deed" till the condition is performed.* As defined by the common law, a written instrument delivered to a third person to take effect upon the happening of a contingency. Originally applied to a deed; then to written contracts generally." Nothing passes unless the condition is performed. There can be no delivery, as an escrow, to the grantee himself. When justice requires, it may take effect by relation back to the first delivery.' See DELrvERT, 4.

A scroll; a third person, who is some actj or some

Escrowe, Escrovet. L. Fr. «k Eng. A scroll, (scrowl, scrole) or writing; (Lat. scriptum, schedula;) a mere writing^ as distinguished from a perfect deed.* Britt. c. 71. l Att. sect. 246. A deed, (and the term includes a bond,) delivered to a third person to hold or keep, until some act is done or condition performed, and then to be delivered to the grantee or obligee, when it takes effect, and becomes a deed to all intents and purposes.* 2 Bl, Com. 307. Co. Litt. 36. Termes de la leg. 1 Steph. Com, 459, note (k) and cases ibid, 4 Ksnfs Com. 454. jffob. 246. 5 Cranch's B, 351. Until the condition be performed* and the deed delivered over, the estate does not pass, but remains in the grantor. 4 Kent*s Com, 454. Generally an escrow takes effect from the second delivery, and is to be considered the deed of the party from that time. In cases, however, where it becomes necessary for the purposes of justice, there is a relation back to the first delivery, so as to give the deed effect from that time. Id. ibid. Smith on Contracts, 10, 11 and note. Escrows occurs in very nearly its modem form in the law French of Bntton, but in Littleton's time was written escrovet; both words being used by these authors in describing the manner of partitioning an inheritance among co-parceners. Thus Britton observes, that after partition made, " the parcels should be entered and specified in several scrolls or escrows {enplusurs escrowes,) and these escrowes should be delivered to a layman who knows nothing of letters, and he shall deliver to each parcener an escrow (un escrowe). And according to the lot of the escrows, (that is, according as they happen to be thus distributed) each parcener shall hold for her share." Britt. c. 71. Littleton describes the mode of drawmg the lots thus: "After the partition of the lands made, each part of the land shall be written alone by itself in a little scroll {en un petit escrovet) and shall be covered all over in wax, in the manner of a lit Ue ball, {d'un petit pile), so that no one can see the scroll, and then the four balls of wax shall be put into a hat to be kept in the hands of an indifferent man," and then the eldest daughter drew first, &c. Litt. sect. 246. Escrowe seems properly to mean something more than a mere uniting (that being denoted by the Fr. escript, which however escrovet somewhat resembles.) The radical idea appears to be, a writing the contents of which are temporarily kept out of view, as by being put in a third hand, by rolhng up, enclosing in wax, <kc. It will be seen from the foregoing extracts that the distinctive modem feature of an escrow, viz. its being held in the hands of a third person, has belonged to it from the earliest times.

conveyancing, contracts, is a conditional delivery of a deed to a stranger, and not to the grantee himself, until certam conditions shall be performed, and then it is to be dehvered to the grantee. Until the condition be performed and the deed delivered over, the estate does not pass, but remains in the grantor. 2 Johns. R. 248; Perk. 137, 138. Generally, an escrow takes effect from the second delivery, and is to be considered as the deed of the party from that time; but this general rule does not apply when justice requires a resort to fiction. The relation back to the first delivery, so as to give the deed effect from that time, is allowed in cases of necessity, to avoid injury to the operation of the deed, from events happening between the first and second delivery. For example when a feme sole makes a deed and delivers it as an escrow, and then marries before the second delivery, the relation back to the time when 307; 4 Kent, Com. 446; Cruise, Dig. t. 32, c. 2, 8. 87 to 91; Com. Dig. Fait, (A 3); 18 Vin. Ab. 29.