The bill of sale, delivered by Morgan to Strickland, was, in its effect, a conveyance of title. — Bush v. Bradford, 15 Ala. 817. The delivery of the bill of sale to the vendee has, of itself, the legal effect of transferring the title from the vendor to the vendee. The vendor says by the bill of sale, when delivered to the purchaser, I transfer the title. The law will not permit him to say, that there was a parol agreement, by which the bill of sale delivered to the purchaser was not to be effectual, unless the purchaser should give him a note for the purchase money with a certain surety. A deed cannot be delivered to the grantee as an escrow.— Firemen’s Insurance Company v. McMillan, at this term ; Thoroughgood’s case, 5 Coke, 136 ; Granis v. Tucker, 10 S. & M. 1; Hey v. Schooley, Longworth, et al., 7 Ohio, 873 ; Moss v. Riddle & Co., 5 Cranch, 351 ; Pawling v. United States, 4 Cranch, 219 ; Fairbanks v. Metcalf, 8 Mass. 230 ; Bibb v. Reid & Hoyt, 3 Ala. 88 ; Robertson v. Coker, 11 Ala. 466.
We do not intend to decide, that it may not be shown that an instrument, although placed in the possession of the obligee, was not so placed with the intention of delivery at all; as was held in Hopper v. Eiland, 21 Ala. 714. But, while parol proof may be admissible to show that there was really no delivery, it cannot be received, consistently either with principle or authority, to show that a delivery made to the grantee was upon a condition, not to be effectual except in a certain contingency. There is no reason for a distinction between conveyances not under seal, and those under seal. They alike take effect by delivery, and there can be no reason in visiting a different rule upon them as to the question of escrow. — See the authorities cited below: Prime v. Yates, 3 Brevard, 559 ; Ohitty on Bills, 195 ; Chamberlain v. Hopps *287& Hopps, 8 Verm. 96 ; Story on Bills, 224, § 203 ; Alsop v. Swathal, 7 Conn. 500 ; Brind v. Hampshire, 1 M. & W. 365 ; Marston v. Allen, 8 M. & W. 494.
It was not, in our judgment, permissible to vary the effect of the delivery of the bill of sale to the purchaser, by showing that it, together with the slave sold, was delivered upon the condition, that the purchaser should give a note with a specified surety for the purchase money. We are not at all certain that the proof conduced to show that there was any condition about the delivery; but it is unnecessary to consider that question, as the point already decided is conclusive. — See Evans v. Gibbs, 6 Humph. 405. If it be conceded, that the evidence conduces to show a delivery of the bill of sale, upon the condition that it should become void, and the title should revest in the seller, in the event of a failure to give the note with the prescribed security, it would not avail the appellant, because it would be incompetent to incorporate a parol defeasance of that kind upon a written conveyance.
The judgment of the court below is affirmed.
RICE, C. J.The question of the delivery of an instrument is one involving the consideration of both acts and motives. The consent of the maker is an essential ingredient in the constitution of a good or complete delivery. And though the instrument may have been handed over to the grantee, it may be shown that he obtained it fraudulently, or in an improper manner, or that for want of the consent of the grantor the handing over of the instrument did not amount to a good delivery. The oral declarations of intention, connected with the handing over, may come in as part of the res gestee. All facts relating to the execution, as distinguished from the construction of the instrument, may, in general, be shown, notwithstanding anything appearing on the face of the instrument. — 3 Cowen & Hill’s Notes to Phil. Ev. (edition of 1839), 1282, 1388, 1450, 1453, 1454; Clarke v. Gifford, 10 Wend. R. 310.
Where the legal effect of the acts of a party depends upon his intention, and there is the slightest conflict in the evidence as to that intention, that intention is a question of fact for the jury, and cannot be determined by the court, or taken by it *288from the jury. — Powis v. Smith, 5 Barn, & Ald. 850 ; Oliver v. The State, 17 Ala. Rep. 587; Henry v. Patrick, 1 Dev. & Batt. 358 ; Allison v. Matthieu, 3 Johns. R. 235.
The evidence in this case, as to the intention of Morgan in handing the instrument and slave over to Strickland, is not entirely free from conflict; and it was erroneous, therefore, for the court to withdraw from the jury the determination of the question of his intention, and to give the sweeping charge which was given. Such a charge ought never to be given, when there is any conflict in the evidence upon any material question. — Arnold v. The State, at this term, and cases there cited.
Regarding the charge of the court below as an invasion of 'the province of the jury, I cannot sanction it, or consent to afflrm the judgment.