A lease and counterpart were engrossed and the counterpart was sealed by the defendant tenant company. The company raised with its solicitors the question as to the date from which rent was to run. Before the point was settled, the tenant sought to withdraw. At first instance the company was found to have delivered the counterpart as an escrow but that it was too late for the landlords to claim that the escrow condition had been fulfilled.
Held: The appeal was allowed. The company argued that there was no delivery. The landlords argued that ‘sealing by a company imports delivery’. The trial judge was entitled to find delivery of the counterpart as an escrow. Winn LJ said that ‘[a]part altogether from the technical point under section 74’, Beesly was to be noted.
Lord Denning confirmed that: ‘The law as to ‘delivery’ of a deed is of ancient date. But it is reasonably clear. A deed is very different from a contract. On a contract for the sale of land, the contract is not binding on the parties until they have exchanged their parts. But with a deed it is different. A deed is binding on the maker of it, even though the parts have not been exchanged, as long as it has been signed, sealed and delivered. ‘Delivery’ in this connection does not mean ‘handed over’ to the other side. It means delivered in the old legal sense, namely, an act done so as to evince an intention to be bound. Even though the deed remains in the possession of the maker, or of his solicitor, he is bound by it if he has done some act evincing an intention to be bound, as by saying: ‘I deliver this my act and deed.’ He may, however, make the ‘delivery’ conditional: in which case the deed is called an ‘escrow’ which becomes binding when the condition is fulfilled.’
Winn LJ said: ‘it might be very helpful in modem life if there were some modification of the law, departing somewhat from the strictness of the old rule . . I think it might be more realistic to depend upon physical movement or legal control of the document after the time when it is sealed, so that it would become the law that some adoptive demonstration is required additionally to the mere affixing of the seal. Concentration upon the movement of the deed thereafter would make it easier to solve the question, has the maker by parting with it to such extent and manner as may be proved expressed an intention – indicated, demonstrated an intention – for it to be immediately binding, or demonstrated a suspensive intention that it shall not be immediately binding upon him but only binding if some particular event does occur?’
Lord Denning MR, Winn LJ, Fenton Atkinson L
[1969] 2 QB 609
England and Wales
Cited by:
Cited – Bolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later.
Held: Under the 1985 Act completion would require writing, intention and . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 01 January 2022; Ref: scu.188675