VAN VALKENBURG v. ALLEN.

[111 Minn. 333, 126 N. W. 1092.]

DEED—Sending to Bank for Delivery to Vendee.-Deeds were sent by the vendor in a contract for sale of land to a bank for delivery to the vendee on payment of a named sum. The vendee tendered a less amount, and offered to pay what balance should be found due to the vendor on an accounting. The bank was not named in the contract as a repository in escrow. It is held that the bank was merely an agent of the vendor, and that under these circumstances an action did not lie against it to compel the delivery of the deed. (pp. 561, 562.) DEED.-An "Escrow" is a Deed Delivered to Some Third Person to be by him delivered to the grantee on the performance of some precedent condition by the grantee or another or the happening of some event. If the instrument remains in the dominion of the maker, it is not an escrow. To constitute an escrow the deed must be delivered to a third person, and not to the agent of the grantor. (p. 562.) (Syllabi by the court.)

J. Van Valkenburg, pro se.

Ell Torrance, for the respondent Hennepin County Savings Bank,

334 JAGGARD, J. Plaintiff and appellant, the executor of one Lund, deceased, brought this action against the defendant and respondent Allen and a corporation hereinafter referred to as the bank. The complaint set forth in effect that in 1906 Lund and Allen executed a written contract for the sale of land by Allen to Lund; that during his life Lund paid twenty-seven thousand one hundred and eighty dollars on this contract; that Allen placed in escrow in possession of the bank, within the jurisdiction of the court, deeds to the said land, to be delivered on the payment of five thousand and forty-five dollars and two cents; that plaintiff tendered to said defendants the sum of fifteen hundred and thirteen dollars and fifty-eight cents in full payment of the deeds, after deducting pro rata for premises agreed to be withdrawn from the contract, and was willing to pay such other and further sum as on accounting should be found due. Plaintiff demanded judgment for an accounting, and for a decree directing the bank to deliver the conveyance to this plaintiff upon the receipt of the amount found to be due. The other allegations are not material here. On application of the plaintiff, the court restrained the bank from parting with the deeds of conveyance until the final determination of the action.

Defendant bank moved to dissolve the temporary injunction and to dismiss the action, on the grounds that the summons therein had not been served on defendant Allen, Am. St. Rep., Vol. 137-36

a nonresident, who had not appeared in said action, and who had had no property within the jurisdiction of the court since the commencement of the action; that the complaint did not show that any judgment for money or damages could be entered against Allen; that the property in dispute was situated in North Dakota; that the deed sought to be delivered to plaintiff ran to grantees other than the plaintiff; that, if defendant delivered the deeds contrary to the terms authorized, it would be subject to an action for damages by Allen; and that an action was pending in the courts of North Dakota by plaintiff against Allen to enforce specific 335 performance of the contract. The court granted the motion, dissolved the injunction, and dismissed the action. This appeal was taken from that order.

The present controversy is within narrow limits. Plaintiff insists that neither Allen or anyone else had any right to impose terms, to be enforced by the depositary to whom the deeds had been sent for collection, differing from the agreements of the parties in the contract for deed, and that if the attempt were made, the conditions thus prescribed did not supersede the original terms set forth in the contract. specific proposition is sound enough: 11 Current Law, 1274. And see Naylor v. Stene, 96 Minn. 57, 104 N. W. 685. But it is not applicable to the case at bar. A brief inquiry into the nature of an escrow will demonstrate this.

"An escrow. . . . is a deed delivered to some third person, to be by him delivered to the grantee upon performance of some precedent condition by the grantee or another, or the happening of some event": Duncan v. Pope, 47 Ga. 445; 3 Words and Phrases, 2464. If the instrument remains under the dominion of the maker, it is not in escrow: Anderson v. Goodwin, 125 Ga. 663, 54 S. E. 679; Rendlen v. Edwards, 116 Mo. App. 390, 92 S. W. 731; Devlin on Deeds, secs. 282, 283, 324. The deed must be delivered "to a third person, and not to the grantee himself": 3 Words and Phrases, 2466. Nor "to the agent or attorney of the grantor, because the possession of the grantor's agent or attorney is the grantor's possession, and revocable by him: Wier v. Batdorf, 24 Neb. 83, 38 N. W. 22; Raymond v. Smith, 5 Conn. 555. Nor to the agent or attorney of the grantee, for then it is equivalent to a delivery to the grantee himself: Hubbard v. Greeley, 84 Me. 340, 24 Atl. 799, 17 L. R. A. 511 "; Foster, J., in Day v. La Casse, 85 Me. 242, 27 Atl. 124. The depositary must be the agent of both parties: Davis v. Clark, 58 Kan. 100, 48 Pac. 563.

The case did not involve an escrow in the technical sense. There was no delivery to a custodian in pursuance to an agreement of the parties to the transaction, either express or implied. The bank was not a party to the agreement, and was

in no wise agreed upon by the parties as the custodian. It was merely Allen's agent; its possession 336 was Allen's possession; the deed it received was under Allen's control and dominion. The principle to which defendant refers us does not apply: Wier v. Batdorf, 24 Neb. 83, 38 N. W. 22; Day v. La Casse, 85 Me. 242, 27 Atl. 124; Fitch v. Bunch, 30 Cal. 208; Miller v. Sears, 91 Cal. 282, 25 Am. St. Rep. 176, 27 Pac. 589; Shults v. Shults, 159 Ill. 654, 50 Am. St. Rep. 188, 43 N. E. 800.

In this view of the case it is unnecessary to consider the further question raised by respondent.

Affirmed.

The Delivery of Deeds in Escrow is the subject of a note to Wilkins v. Somerville, 130 Am. St. Rep. 910.

O'BRIEN v. CURRY & WHYTE.

[111 Minn. 533, 127 N. W. 411.]

REPLEVIN-Nature of Action.-Replevin is an Action for the wrongful detention of possession, and the primary object is to recover the thing and not its value. (By the editor.)

(p. 565.) REPLEVIN.-A Redelivery Bond is a Substitute for the property only in those cases where a delivery of the property cannot be had on final judgment. (By the editor.) (p. 565.)

REPLEVIN.-The Rebonding of the Property, in Replevin actions, does not vest absolute title in the defendant, but he holds it subject to the final determination of the action, and a purchaser of the property from such rebonding defendant acquires no better title than the defendant had. Katz v. Hlavac, 88 Minn. 56, distinguished. (pp. 565, 536.)

(Syllabi by the court except when stated to be by the editor.) Baldwin, Baldwin & Dancer, for the appellant.

McMahon & Rock, for the respondent.

534 LEWIS, J. This action was brought to recover the purchase price of certain cedar posts, alleged to have been sold to appellant according to the terms of a written contract, executed May 19, 1909. The answer admitted the execution of the contract and delivery of the posts, but justified refusal of payment upon the ground that the posts were cut from land which belonged to another party; that respondent was a trespasser in cutting and removing the same, and had not title thereto; that respondent knew he was a trespasser, and that an action in replevin had been commenced against him by the true owner; that he had represented to appellant that he had settled the replevin action and had a clear title to

the timber, which representations constituted the inducement for appellant to enter into the contract; that after the timber had been delivered to appellant, and after it had loaded and shipped the same to various points, the owner, one Lord, demanded payment therefor, and threatened to bring suit in case it was not made, and thereupon appellant paid him for the timber according to the contract price. Respondent replied by alleging that he had in good faith purchased the timber from a third party, who claimed to be the owner thereof, and that the cutting, removing, shipping and preparation of the posts for market was done with the knowledge and consent of those who subsequently claimed to be the owners. The reply also states that the stumpage was worth not to exceed two hundred dollars, and that the person with whom appellant made settlement did not become the owner of the land until after the timber was removed.

At the trial the following facts were conclusively estab lished: In October, 1908, the land from which the timber was taken belonged to one Warner, who during that month gave an option to Mr. Lord for the purchase of the land. On February 15, 1909, Lord exercised his option and received a deed of the land from Warner. On February 16, 1909, Lord entered into a contract for the sale of the land to Stewart. At this time both Lord and Stewart knew that O'Brien was cutting and removing the timber from the premises. On March 5, 1909, Lord obtained an assignment from Warner of all claims arising out of respondent's trespass in cutting and removing the timber. On April 24, 1909, after all the posts had been delivered at 535 the railway siding, Lord commenced an action in replevin against respondent for possession of the posts. The sheriff took possession thereof, and respondent immediately executed and filed a redelivery bond, and the posts were redelivered to him. Issue was joined in the replevin action, and it stood for trial at the June, 1909, term of court. Appellant shipped the posts from the siding at some time between May 19th and the 1st of June. On June 1st appellant paid Lord about eight hundred and fifty dollars for the posts, and on June 2d Lord dismissed the replevin suit, or made an attempt to do so.

At the trial, when respondent's case was closed, the court, on authority of Katz v. Hlavac, 88 Minn. 56, 92 N. W. 506, instructed the jury to return a verdict for respondent for the full amount claimed to be due under the contract, upon the ground that title to the timber became vested in him at the time of the execution and filing of the replevin bond. The validity of that order is the question now before this court.

The learned trial court misapprehended the decision cited. In that case Hlavac had brought an action in replevin against Katz to recover possession of a stock of boots and shoes. The

usual bond was executed by Hlavac, and the sheriff took possession of the property; but Katz rebonded and retained possession of the goods, and then brought suit against Hlavac and his sureties to recover damages caused by the depreciation in the value of the property from the time it had been rebonded until final determination of the action. It was held that he could not recover, and the gist of the case is correctly stated in the closing part of the opinion, as follows: "Damages recoverable in actions of this kind are those that the successful party has suffered by reason of the wrongful detention of the property from him. If he have the possession and the right to control the property as his own, precisely as though no action had ever been brought against him, it is not very clear upon what he can predicate a claim for depreciation in its value against his opponent in the action, who is in no way responsible for it, being in no position and having no right to take any action in reference to the care of the property, or to preserve it from damage and injury. From this it necessarily follows that, after a redelivery of the property involved in claim and 536 delivery proceedings to the defendant, he is not entitled, on being successful in the action, to recover on plaintiff's bond any damage to or depreciation in the value of the property subsequent to that time."

From an examination of that case, it is apparent that the question of title was not involved. True, there are some unguarded statements in the syllabus, and in the body of the opinion, which, upon a cursory examination, without reference to the real issue before the court, might convey the impression that the mere act of rebonding the property by the defendant in a replevin action had the effect of vesting absolute title in the defendant. The general statement in the syllabus and opinion that the bond is a substitute for the property, and that the party rebonding may treat the property as his own, and sell and dispose of it, must be understood to have reference to a cause of action which the defendant so rebonding might have against the plaintiff for damages to the property while in his possession. While not so expressly stated, it is necessarily implied that whatever authority the rebonding defendant had to sell was subject to the final determination of the action. Replevin, under our statute, is an action for the wrongful detention of possession, and the primary object is to recover the thing, and not its value. The redelivery bond is a substitute for the property only in those cases where a delivery of the property cannot be had on final judgment. It then stands in place of the property, and as security for the payment of the value thereof to plaintiff. The provisions of the statute have been strictly construed, as noticed in Katz v. Hlavac, 88 Minn. 56, 92 N. W. 506. It follows that one who purchases from a defendant who has rebonded buys subject