McDonald v. Huff
Before: Works
Synopsis
Appeal from a judgment of the Superior Court of Humboldt County, and from an order denying a new trial.
In 1882, John Huff being indebted to John E. McDonald, who held a mortgage upon the land in controversy, and also a judgment against said Huff, it was agreed between them that Huff should convey the mortgaged land to John E. McDonald, in consideration of a release of all of said indebtedness, and that a conveyance of the land should be held in escrow by E. H. McDonald till November 21, 1882; and in case Huff paid to John E. McDonald $3,080 before said date, the conveyance should be returned to Huff, and if he failed to pay it before said date, the deed in escrow should be delivered to John E. McDonald and become absolute. The escrow remained with E. H. McDonald till March 16, 1883, when it was delivered to John E. McDonald. February 13 and 28, 1883, Huff made two separate demands for the delivery back of the escrow, and on February 26, 1883, executed a deed of the land to the defendant E. F. Herrick, who knew all the. facts.
Works, J. This cause was heard in Department One, and reversed. A rehearing was granted. Upon a careful consideration of the questions presented, 'and more fully argued at the hearing in Bank, we are of the opinion that the judgment in department should not stand as the judgment of the court.
The deed from the appellant Huff to respondent was, in the hands of R. H. McDonald, an escrow. (Cannon v. Handley, 72 Cal. 133, 140; Schmidt v. Deegan, 69 Wis. 300.) And being so, it could not be revoked by the appellant. (Cannon v. Handley, supra; Knopf v. Hansen, 37 Minn. 215.) The depositary was not the agent of the vendor alone, but of both parties, and, as such, was bound to deliver the instrument on performance of the condition provided for in the contract under which he held it. (Cannon v. Handley, supra; Shirley v. Ayres, 14 Ohio, 307; Schmidt v. Deegan, supra.)
Here were two written instruments, signed by the appellant Huff, one an agreement to convey on certain conditions, which was fully executed by delivery to the depositary; the other a deed, made in pursuance of the agreement, and to become operative upon the happening of the conditions set forth in said agreement, and its delivery by the depositary to the respondent.
The first of these was binding upon the appellant, from its delivery to the depositary, without the signature of respondent, or any contract in writing from him. (Code Civ. Proc., sec. 1973; Civ. Code, sec. 1624; Rutenberg v. Main, 47 Cal. 213, 219; Vassault v. Edwards, 43 Cal. 458, 464; Moss v. Atkinson, 44 Cal. 4.) And the respondent, having agreed, verbally, to the terms of such [283]written agreement to convey, was thereby estopped to enforce the collection of his debt until the time fixed for the payment of the money in pursuance thereof, or, in default of such payment, the delivery of the deed. (Vassautl v. Edwards, supra; Cagger v. Lansing, 57 Barb. 421, 424; Worral v. Munn, 5 N. Y. 229; 1 Reed on Specific Performance, sec. 365; Schmidt v. Deegan, supra.)
The findings of the court below show an acceptance of the deed by the attorney of the respondent, and that he, by his agent and attorney, duly executed a receipt in full of all demands against the defendant Huff, and deposited the same with the depositary for his use.
This shows a sufficient delivery and acceptance of the deed and release of the indebtedness.
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