The Trust and Loan Co. vs. Ruttan.

A delivery even to a third party is valid and effectual when the grantor parts with all control over the deed. Doe Garnons v. Knight (1).

Moreover, it must be intended by both parties that the delivery should only operate as the delivery of an escrow. Gudgen v. Besset (2).

Thompson, when he signed and delivered the mortgage to the agent of the Appellants, did all he could, and his estate completely passed. As to power of an agent to accept delivery of an instrument, I refer to Cincinnati, Wilmington & Zanesville R. R. Co. v. Iliff (3); also Washburn, Real Property (4).

Now, the estate of which Thompson divested himself could not remain suspended, but passed at once to the Plaintiffs and became vested in them, subject, however, to be disclaimed by them if they thought fit so to do, which they never did, but until such disclaimer the said estate would remain vested in them. Cartwright v. Glover (5).

It was quite competent to the Appellants here, on discovering that the mortgagor had no title, to procure a new mortgage, and so obtain the benefit of the covenant in question. Not having thought proper to do so, they cannot infer that the mortgage was only intended to operate as an escrow. The remarks of Smith, J., in Xenos v. Wickham (6), are here applicable: "That it is better to adhere to plain inferences of fact than to attempt to remedy inconveniences of a negligent mode of doing business by making the facts bend to the exigencies of the negligence."

If actual acceptance, by some overt act of the Plaintiffs, were necessary, in order that the estate, purported

(1) 5 B. & C., 671; (2) 6 E. & B., 992; (3) 13 Ohio State R., 249; (4) 3 Vol., p. 292.; (5) 2 Giffard, 620; (6) L. R. 2 H. L., 306.

The Trust and Loan Co. vs. Ruttan.

to be conveyed by the said mortgage, should be vested in them, a like overt act of actual acceptance by Thompson was necessary, in order that the estate, purported to be conveyed by the said deed, should be vested in him, and none such was proved; a verdict ought, therefore, to have been entered for the Defendant Ruttan, on the plea of non est factum.

Admitting that the Plaintiffs had the right to take the mortgage and to keep it until they should have an opportunity to determine whether they would accept it or not, and then to refuse it or accept it, the estate thereby conveyed would nevertheless vest in them, and remain vested in them until such determination was arrived at.

Admitting that the estate purported to be conveyed by the said mortgage did not vest in the Plaintiffs until an actual acceptance thereof by them by some overt act, yet such actual acceptance would be of the estate of which Thompson divested himself by his execution of the said mortgage, and would have relation back to the time when he so divested himself.

The learned counsel also relied upon the following authorities:

Muirhead v. McDougall, et al (1); Mackechnie v. Mackechnie (2); Exton v. Scott (3); Muir v. Dunnett (4); Childers v. Childers (5); McFarlane v. Andes Insurance Company (6); Doe Spafford v. Brown et al (7) ; Thompson v. Leach (8); Thompson v. Leach (9); Butler & Baker's case (10); Doe Garnons v. Knight (11); Xenos v. Wickham (12); Cumberlege v. Lawson (13).

(1) 5 U. C. Q. B., O. S., 642. (2) 7 Grant, 23. (3) 6 Sim., 31. (4) 11 Grant, 85. (5) 1 K. & J., 315. (6) 20 Grant, 486. (7) 3 U. C. Q. B., O. S., 92. (8) 2 Ventris, 198. (9) 3 Mod., 296. (10) 2 Coke, p. 68, ed. of 1826. (11) 5 B. & C., 671. (12) 13 C. B., N. S., 381; also in 14 C. B., N. S., 435, and 2 L. R., H. L., 296. (13) 1 C. B., N. S., 709.

The Trust and Loan Co. vs. Ruttan.

Mr. Bethune, Q. C., in reply :

Mr. Boulton was not Appellants' agent when Thompson left the mortgage with Boulton, as it was in the

hands of a stranger.

June 28th, 1877.

RITCHIE, J.

The transaction out of which this controversy arises was an extremely simple one. Thompson, on the 1st day of March, 1855, applied to Plaintiffs for a loan, to enable him to discharge an indebtedness to them, and offered certain property in security. It is obvious, at the outset, that Plaintiffs never intended to make such an advance unless the security was deemed adequate and the title to the property unquestionable; and it is equally clear, that Thompson never intended to convey or incumber the property unless Plaintiffs made the advance. In other words, the making the advance was to be dependent on the adequacy and validity of the security, on the one hand; and the giving the security was to be dependent on the making of the advance, on the other.

With a view to the completion of this very natural and simple transaction, and doubtless for convenience and expedition, Thompson, on the 10th of August, 1855, executed a mortgage to Plaintiffs, which was left with Boulton, a son of a local agent of the Company.

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He gives this account of the transaction :

"I am a Barrister and an Attorney. My father was the local agent of the Trust and Loan Company here. I "did most of the business. I saw the deed of 22nd "June, 1855, from Defendants to Thompson, and the

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The Trust and Loan Co. vs. Ruttan.

mortgage from Thompson to the Company (10th April, 1855,) executed. I recollect G. S. Boulton was Registrar at the time, and he was Deputy Registrar "at one time, and I have no doubt he was Deputy Registrar at that time. The deed is in the hand writing of William Henry Van Ingren. The mortgage must have been drawn at Kingston and sent up "to me. The name of Mr. Thompson is in my hand"writing. I must have received instructions to prepare the deed from the Plaintiffs' office at Kingston. "I can't say from which of the Messrs. Macdonald. I "know Mr. Thompson going to Kingston about the "matter. I don't recollect specially anything about "this. In the usual course of business the mortgage "would be registered as soon as possible after I received

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it, unless I received instructions to the contrary, "and for that reason I have no doubt I must have received "such instructions or I would not have kept it in that way. "I looked for correspondence in the matter. Could not "find any. It may be that Mr. Thompson, who went "down several times himself, may have brought up "some instructions which may have been mislaid. I "looked all through the Trust and Loan Company's correspondence and could not find it.”

Cross-examined.

I only recollect going to the Globe once and seeing "Mr. and Mrs. Thompson execute this. It was sent by "the Company to us to be executed. I have no doubt "I took it away. I can't recollect if I sent it down to "Kingston, or kept it until it was registered. This "deed from the Defendants to Thompson, I must have "been instructed in some way by the Company to see "it done. To the best of To the best of my recollection Thompson "brought up letters. I can't say if the £1000 was paid. "I don't remember if it was."

The Trust and Loan Co. vs. Ruttan.

Re-examined.

"If Mr. Thompson had come to me and asked me to "draw the deed to perfect the title, I think I would "have done it, but I don't think that was the case in "this matter. I could find no trace of any, only the "charges. I think Mr. Thompson got the money at Kingston himself."

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The directions issued by the Company to be observed by applicants contain the following:

"If, however, the applicant is desirous of saving "time and is willing to incur the expenses of obtaining "the Registrar's certificates before the sufficient value of "the property is ascertained, he may transmit to this "office the abstract and certificates with his deeds, when "he sends this application and the receipt for the pay"ment to the Commercial Bank M. D. In this case the "Title and Registrar's certificate, with the other docu"ments, will be submitted to the Company's solicitor "for his report, as soon as the Commissioners are satis"fied of the value of the property, and the information, "&c., regarding the title may be required."

At the time this mortgage was left with Boulton, the report of the appraisers of the Company as to the value of the property had been received by the Company and had been "considered and referred to the Company's "solicitor for his report on the validity of the applicant's "title to the property described in the schedule." It is, to my mind, very clear, that pending this reference and while the transaction was incomplete, the mortgage was not to be recorded, as Boulton's evidence very clearly shows, but to be transmitted, as it appears to have been, to the Company's solicitor (as we find it in his hands as will subsequently appear) obviously to abide the result of his report and the final action of the Com