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Day v. Griffith.

or intended, we remark that in the first case, seven of the twelve judges were of the opinion that there was no surrender of the life estate by the deed to Sir Simeon Leach, until it was accepted, which was not until some five years after the birth of the son Charles, (the deed being made upon his birth), and in the House of Lords but two judges were of a contrary opinion, though the case was in fact there reversed, and a second ejectment afterwards brought. In giving a statement of this case the American editor, (Cruise, 4, p. 14), says :("If, therefore, the question were general whether the title to an estate passed to the grantee upon the execution of a deed, and without his knowledge, it is not improbable that among American jurists, the opinion of the majority of the judges in Thompson v. Leach, would be held as the better opinion.") In Reed v. Robinson, there was a general assignment to a trustee for the benefit of creditors. When the trustee learned the fact, he refused to have anything to do with it. It was held, however, that though the title passed to the trustee in trust, upon the delivery of the deed to a third person for the declared purpose, on his refusal it revested in the assignor; that the trust took effect, however, and that under the statute it was the duty of the Court to appoint a trustee to execute the same. But here most clearly the statute directed the course to be pursued, when the trust was expressly declared by the debtor. The trust would not be allowed to fail though it might "be renounced by the trustee or he should refuse to accept it."

In Hatch v. Hatch, 9 Mass., 307, and Foster v. Mansfield, 3 Met., 412, there was no intervening attachment, the question being, whether as against the heirs claiming the estate, a deed made by the ancestor to another heir and left with the scrivener to be retained by him until the grantor's death, and then to be delivered to the grantee, and actually thus delivered, would be valid. The case of Doe v. Knight,

Day v. Griffith.

5 Barn. & Cres., 671, enunciates the same rule, applying it to a mortgage made and delivered to a third person for the benefit of the creditor; which was sustained upon the ground that the mortgagor parted with the instrument for the benefit of the creditor, and in order that it should be delivered to him.

In Hedge v. Drew, 12 Pick., 141, it was held, that the delivery of the deed by the grantor for the use of the grantee, and her assent to the same before the attachment, was equivalent to an actual delivery to the grantee, personally. But the whole argument shows, that the holding would have been otherwise if the attachment had been before the assent or acceptance of the grantee. And see Jackson v. Phipps, 12 John., 418, which is also pertinent from the fact that there the deed, under which defendant claimed, and which was held invalid, for want of delivery, was made pursuant to an agreement previously entered into between the grantor and grantee, the agreement having reference to the particular farm afterwards conveyed. See, also, Woodman v. Coolbroth, 7 Greenl., 181. In Lamson v. Thornton, 3 Met., 275, there was a prior agreement, that the land should be conveyed in satisfaction of the note sued upon by plaintiff. The deed was made and sent by the grantor to the county registry. This was in 1833, when the grantee was absent on a voyage, from which he did not return until 1836. The land was attached as the property of the grantor in 1835, before the return of the grantee, and before he had otherwise accepted the conveyance. It was held, as against the attaching creditor, there was no valid delivery, and that the title did not pass. And see Maynard v. Same, 10 Mass., 455.

The reasoning and authorities cited in Church v. Gilman, 15 Wend., 655, teach, among other things, if we understand the case correctly, that a deed may be delivered to a stranger for and in the behalf, and to the use of him to

Day v. Griffith.

whom it is made, without authority, but if it be delivered to a stranger without any such declaration, intention or intimation, unless it be a case where it is delivered as an escrow, there is no sufficient delivery. And that this view is correct, see 2 Washburne Real Property, 582, where, citing this with other authorities, it is said that, “When a deed is delivered to the grantee named, the law presumes that it was done with an intent, on the part of the grantor, to make it his effectual deed. But if it is delivered to a stranger, and nothing is said at the time, no such inference is drawn from the act of delivery.") If this be the true construction of that case, the syllabus is calculated to mislead and does, indeed, misstate the law. In the case before us, there is no pretense from the proof, other than by impli cation, that Day, the grantor, delivered the bill of sale to the recorder, "for, and in behalf, and for and to the use of the grantee." Powers v. Russell, 13 Pick., 69. Nor was the delivery to the recorder, as the trustee or agent of the grantee, to be held for a certain time, or to be delivered upon the happening of a certain event. The case of Wheelwright v. Same, 2 Mass., 447; Belden v. Carter, 4 Day, 66, and others of that class, are not, therefore, pertinent to the present inquiry.

In Verplanck v. Sterry, 12 John., 535, the ruling is clearly correct, upon the ground that the deed, though not delivered to the trustees named, was to the beneficiary. And the case of Law's Executor v. Bury, 3 Dyer, 167, there cited, if good law at this time, was not wanted to sustain the conveyance made for the benefit of the daughter, Louisa Ann Arden.

In Denton v. Perry, 5 Verm., 382, it is held, that if the grantee has not accepted the deed before the attachment by the creditor, the creditor obtains precedence, though the deed has been recorded. And that case has an analogy to VOL. XV.-15

The State of Iowa v. Eads.

this, from the fact that the creditor, before attaching, made inquiry as to the title.

We conclude, therefore, that the Court below correctly confirmed the report of the majority of the referees and the judgment is

Affirmed.

THE STATE OF IOWA v. EADS et al.

1. MECHANICS' LIEN: MORTGAGE. It is not necessary to make a mortgagee a party to a proceeding to enforce a mechanic's lien, in order to bar or cut off his right to redeem the premises to which it attaches. The adju dication of a mechanic's lien, and the sale of the property thereunder concludes the parties and others claiming through or under them.

2. SAME: REDEMPTION. The law relating to redemption of real estate sold under execution, applies to sales made in the enforcement of a mechanic's lien.

Appeal from Lee District Court.

TUESDAY, OCTOBER 6.

PLAINTIFF filed a petition in equity, in the District Court of Lee County, at Fort Madison, December 18, 1861, to foreclose a certain mortgage executed by J. D. Eads and Minerva, his wife, and filed for record, January 2d, 1857, conveying to plaintiff lots 108, 109, 110, in Fort Madison. McMurphy is made a defendant, and the petition alleges that he claims title to lot 108, under a sheriff's sale thereof, upon a judgment in favor of Hesser & Hale, to enforce a mechanic's lien. Plaintiff denies that defendant's (McMurphy) title to said lot is paramount to the mortgage, and claims that, as plaintiff was not made a party to the proceeding to enforce the mechanic's lien, the State has a right to redeem from the sale, by paying the amount for which the property was sold by the sheriff, with interest.

The State of Iowa v. Eads.

McMurphy, in his answer, denies the allegations of the petition, and claims title to the said lot 108, under a judgment to enforce a mechanic's lien, which, he claims, vests him with the fee simple title; and that said lot is in no way subject to the said mortgage. By the exhibits attached to the petition, he sets out his title. He also avers that he has expended upon said lot the sum of $6,750 in improvements and repairs made to preserve the property from destruction, and that he has paid in taxes thereon the further sum of $1,050; that at the time of his purchase there was due for taxes levied upon said property the sum of $600, which he has paid. He avers that he has received but $450 rent for the property, since his purchase, and that he has been in possession since that time.

The cause was tried upon the pleadings, exhibits filed therewith, and an agreed statement of facts, and a judgment of foreclosure rendered in favor of plaintiff against lots 109 and 110, and the bill dismissed as to lot 108, the title of which was found to be in the defendant, McMurphy; and therefrom the plaintiff appeals.

C. C. Nourse, Attorney-General, for the appellant.

1. The State is not bound by the decree against Eads and wife, for the reason that it was not a party to the proceedings in which it was rendered. Falconer v. Frazier, 7 S. & M., 235; Clarke v. Radcliffe, 7 How. (Miss.), 162.

2. The decree for the sale of the property, on the mechanic's lien, did not foreclose the right of redemption, and such right now exists. Veach v. Schaup, 3 Iowa, 194; Watson & Polhemus v. Spence, 20 Wend., 260; Fruiche v. Kramer's Lessee, 16 Ohio, 125; Bradley v. Snyder, 16 Ill., 263; 8 John. Ch., 459.

J. M. Beck for the appellee.

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