The deed of assignment is valid upon its face, and absolute. That it was duly executed by Sager, is not denied; nor is it denied that it was delivered to Howland, the grantee. The only question of fact in the case is, whether such delivery was absolute or conditional From a hasty examination of the mass of testimony in the case, I am inclined to think the referee has erred in his conclusion upon this question; but whether he has or not, I do not deem it necessary to decide.
A deed can only be delivered as an escrow to a third person. If it be intended that it shall not take effect until some subsequent condition shall be performed, or some subsequent event shall «happen, such condition must be inserted in the deed itself, or else it must not be delivered to the grantee. Whether a deed has been delivered or not, is a question of fact upon which, from the very nature of the case, parol evidence is admissible. But whether a deed, when delivered, shall take effect absolutely, or only upon the performance of some condition not expressed therein, can not be determined by parol evidence. To allow a deed, absolute upon its face, to be avoided by such evidence, would be a dangerous violation of a cardinal rule of evidence." (Gilbert v. The North American Fire Insurance Company 23 Wend. 43. Ward v. Lewis, 4 Pick. 518. 4 Kent’s Com. 454. Jackson v. Catlin, 2 John. 248, per Platt, arguendo.) The deed in this case being absolute upon its face, and having been delivered to the grantee himself, took effect at once. It *352could not have been delivered to take effect upon the happening of a future contingency, for this would be inconsistent with the terms of the instrument itself. Without regard, therefore, to any understanding which maymave existed between the parties at the time the deed was delivered, it must be held to be an absolute conveyance, operative from that time.The second, third and fourth exceptions must therefore be allowed* and an order must be entered declaring the claimant Howland entitled to the whole of the surplus moneys in question.
[Albany Special Term, July 7, 1851.Harris, Justice.]
The first and fifth exceptions must be disallowed. The matters to which they relate are not the proper subjects of exception.
The order to be entered upon this decision must also direct that the claimants Hallenbeck and Collier, who have failed to establish their claims to the surplus moneys or any part thereof, be charged with the extra costs, to which the claimant Howland has been subjected by reason of their claims. The claim of Howland was just and equitable. The amount of the surplus is small. At the best, it will make but an insignificant dividend for the creditors of Sager, among whom it is to be distributed. Without adverting to the character of the claims of the unsuccessful parties, it is enough to say that they have entirely failed to establish their claims, and that a large amount of unnecessary costs has been incurred in their litigation. Under these circumstances I do not feel at liberty to charge these costs upon the fund in question. The parties who have failed ought not to complain if they are made to bear the usual consequences of defeat. The amount of such extra costs is to be determined by some proper officer upon the usual notice of taxation.