Thompson had agreed to buy a tenanted property, had paid part of the purchase price, and had received a conveyance in escrow pending payment of the balance. He at that point gave McCullough notice to quit. Two months later Thompson paid the balance of the purchase money.
Held: The court considered what would constitute delivery of an agreement in escrow. Morton LJ said: ‘The question of whether a document is delivered as an escrow or as a deed is in general one of fact, and I think that the following passage from Norton on Deeds . . accurately states the law: ‘Whether the document was delivered as an escrow or as a deed is a question of what the parties intended, and that intention may appear either from their statements or the circumstances.’ The learned author then quotes the following observation of Parke B. in Bowker v Burdekin (1843) 11 MandW 128 at 147: ‘you are to look at all the facts attending the execution, to all that took place at the time, and to the result of the transaction; and therefore, though it is in form an absolute delivery, if it can reasonably be inferred that it was delivered not to take effect as a deed till a certain condition was performed, it will nevertheless operate as an escrow.’ The author goes on: ‘thus the delivery of a transfer of mortgage was held to be in escrow until the mortgage money had been paid . . and of a conveyance until the purchase money has been paid . . The circumstances relied upon to show delivery as an escrow must be prior to or contemporaneous with, not subsequent to, the delivery.
Evidence is, of course, admissible as to what were the circumstances attending the delivery . . and the question is in general one of fact for the jury.’
The notice to quit was invalid because the fee simple was not effectively vested in the giver of the notice: and satisfaction of the condition of the escrow could not retrospectively validate that notice.
Judges:
Morton, Bucknill and Asquith LJJ
Citations:
[1947] 1 KB 447
Jurisdiction:
England and Wales
Citing:
Cited – Bowker v Burdekin 1843
Parke B considered how a court identified whether a document had been delivered in escrow: ‘you are to look at all the facts attending the execution, to all that took place at the time, and to the result of the transaction; and therefore, though it . .
Cited by:
Cited – Bank of Scotland Plc v King and others ChD 23-Nov-2007
The parties contracted to buy and sell a property. The lending bank sought possession, saying that it had advanced the money which had been spent acquirng the property. The defendant purchasers said that completion had not taken place, the full . .
Cited – Stodday Land Ltd and Another v Pye ChD 7-Oct-2016
The agricultural landlord sold part of his land subject to the respondent’s tenancy to the appellant. Before the transfer was registered, notices to quit were served by both the landlord and his buyer. The tenant challenged both notices in the . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 05 May 2022; Ref: scu.261510
