The question of fraud, in this case, was duly submitted to the jury; and from their verdict, it must be inferred, that the transaction between the parties, was not fraudulent. This, of consequence, leaves two points, for the determination of the court. 1. Did the deed in question take effect, from the time when it was put into the hands of the defendant’s brother, or from the delivery of it to the grantee. And 2. if the latter be the fact, was it legally valid ?
Assuming the facts stated in the motion, as we certainly ought to do, unless we invert the legal presumption, that the jury exercised their jurisdiction soundly, the case is briefly this. Having become embarrassed in his circumstances, on consultation with his brother, who had been sent to see him, by Simeon Smith, his father, but without any authority to bind him, the defendant made the deed in question, for the expressed consideration of 1500 dollars, the full value of the premises; and put the same into the hands of his brother, to take with him to Groton, his father’s place of residence, and propose to him, to pay the above consideration, and accept the said deed. The defendant’s brother took the deed to Groton, and communicated the above proposition to his father, a man of abundant properly, who thereupon assented to the said proposal, and received the deed; and in two or three days, went to Lyme, and paid and secured the consideration money, in the manner proposed.
The defendant’s brother was his agent, and was not to deliver the deed, unless his father assented to the proposition, which he was empowered to make. It therefore results, that the deed was an escrow, and, of consequence, was of no validity, until the actual delivery of it to Simeon Smith. 2 Bla. Comm. 307. Shep. Touch. 58. Coe & al. v. Turner & al. ante, 86. It then *117commenced its existence as a deed; to originate which, a delivery is indispensibly essential.
This remark brings me to the second enquiry, whether the deed, on the facts stated, was a valid conveyance. What possible objection can be made ? As the delivery of the deed to a man of unquestionable property, was clearly bona fide, and has been so found by the jury, it is urged, as the only exception, that payment or written security, were not instantaneously made. Independent of the question of fraud, towards the proof of which the above delay may be insisted on, as a circumstance of more or less weight, the law does not require immediate payment, or immediate security. Newbury v. Bulkley, 5 Day 384. No man of prudence, will long procrastinate, in either of the above particulars, lest it should be seized on, as evidence of a transfer mala fide; but after the repeated determinations on the subject, there exists no doubt on the abstract law question, whether the deed, by reason of the non-payment, is inefficient. The consideration is recoverable, in an action at law, in a case under the above circumstance; and to this effect, are the determinations in Clark v. Brown & ux. 1 Root, 77. Hannah v. Wadsworth, 1 Root, 458. Cone v. Tracy, 1 Root, 479. Velie v. Myers, 14 Johns. Rep. 165. Surely, when there is no fraud, and no law prohibiting it, a man may do what he will with his own; and if he elect to entrust a man of property, with the conveyance of land, and not instantaneously to exact the consideration, or demand a promissory note, he is at liberty to do it. Oral proof of the contract, may be more difficult to make, and is less enduring, than a written security; but, it is in point of law, of equal grade with a note payable to order; and the contract is equally valid, on which ever ground the vendor has placed his reliance.
The other Judges were of the same opinion.New trial not to be granted.