ANDREWS, J.
There is an insuperable difficulty in the way of maintaining this action, regarding it as an action for the specific performance of Mrs. Miller's agreement of June 25, 1870, to convey or devise the house and lot in question, growing out of the want of certainty in respect to the persons to whom the conveyance or devise was to be made.
In consideration that Mr. Stanton would remove with his family to Rochester, and take care of and support Mrs. Miller during her life, she promised to assure to him and his family the house and lot (after her death), and to secure the title by placing a deed in escrow, or by will. If there was no specific provision in the contract on the subject, it would be inferred, I think, that the title to the house and lot was ultimately, to be vested in Mr. Stanton, the other party to the agreement. In a general sense such a disposition of the property would be for the benefit of the grantee or devisee and his family. But that this was not the intention of the parties is conclusively established by a clause in the contract which declares that the title shall be given to such "member or members of said Stanton's family as Mrs. Miller may choose." Construing this clause in connection with the other provisions of the contract, the agreement of Mrs. Miller was this: to give the house and lot by will, or by deed to take effect after her death, to such person or persons, members of the family of Mr. Stanton, as she should thereafter select and determine, upon condition, however, that Mr. Stanton should have fully performed the contract on his part. The clause referred to was not a reservation by Mrs. Miller of a power to change the appointment of the title from the course defined in the contract, but was intended to provide for a designation at a future time of the appointees, who by the contract were left wholly uncertain, except that it defined the class of persons from which they should be selected. Unless Mrs. Miller, prior to her death, by some irrevocable act, or by some act which if not irrevocable during her life was not in fact revoked by her, designated the particular members of the family of Mr. Stanton who should take the land under the contract, the court cannot enforce its specific performance. It is an elementary principle governing courts of equity in the exercise of this jurisdiction, that a contract will not be specifically enforced unless it is certain in its terms, or can be made certain by reference to such extrinsic facts as may, within the rules of law, be referred to, to ascertain its meaning. (Fonblanque's Eq., bk. 1, chap. 3, § 7; Adams' Eq., 184; Buxton v. Lister, 3 Atk., 386; Lord Walpole v. Lord Oxford, 3 Ves., 420; Rose v. Cunynghame, 11 id., 555, note.) "Nothing" (said Lord HARDWICKE in Buxton v. Lister) "is more established in this court, than that any agreement of this kind, ought to be certain, fair and just in all its parts." And Lord ROSSLYN, in Lord Walpole v. Lord Oxford, said: "I lay it down as a general proposition, to which I know no limitation, that all agreements, in order to be executed by this court, must be certain and defined;" and although the uncertainty may be caused by an obstacle interposed by the defendant or by his default, the rule is not changed if the court, in order to enforce the contract, will be required to supply a new term to the agreement. ( Wilkes v. Davis, 3 Mer., 507; Dailey v. Whitaker, 4 Drew, 134; Blundell v. Brettargh, 17 Ves., 232; Morgan v. Milman, 3 De G., M. G., 24.) The plaintiff in such a case will be left to his remedy in an action for damages.
The plaintiffs are Mr. Stanton and his four daughters, and they, together with Mrs. Stanton, the wife of Mr. Stanton, comprised his family when the contract was made. The contract of Mrs. Miller would have been performed if she had conveyed or devised the land to Mrs. Stanton, who is not a party to the action, or to any one or more of the plaintiffs. The plaintiffs cannot say that Mrs. Miller intended that they or any two of them should have the land, looking to the contract only; and if the court, in the absence of proof of a valid designation by Mrs. Miller of the persons who should take the title, shall decree it to them, it will be making a contract between the parties, and not executing one. That no irrevocable or valid appointment of the title was made by Mrs. Miller will be shown hereafter; and without considering the other objections in the way of decreeing a specific performance, urged by the counsel for the defendants, I am of opinion, for the reasons stated, that the contract of June 23, 1870, cannot be specifically enforced.
The specific relief demanded in the complaint is two-fold: first, that the defendant Benedict, the depositary of the deed of June 29, 1870, be compelled to deliver it to the plaintiffs; and, second, that the defendant Miller, the son and sole heir at law of Mrs. Miller, who is in possession of the house and lot, deliver the possession to them. The right to the delivery of the deed is claimed, on the ground that it was deposited by Mrs. Miller in the hands of Benedict, in escrow, pursuant to the contract of June 23, 1870, to await the performance of the contract on the part of Mr. Stanton, and in case of performance to be delivered to him at the death of Mrs. Miller, and that Mr. Stanton performed his contract, or what is claimed to be equivalent thereto, tendered performance, and held himself in readiness to perform, at all times during Mrs. Miller's life.
A deed delivered to a third person to be held until the performance of some condition, is a delivery in escrow. (2 Bl., 307.) Unlike the case of a delivery to the grantee, or his agent, no title passes until the condition is performed, nor, generally, until an actual delivery of the deed to the grantee after the happening of the event upon which the title is suspended. This is subject to exceptions, one of which is, that in case of the death of the grantor before condition performed, and it is afterward performed, the law from necessity will give effect to the first delivery, and make it the deed of the grantor from that time. ( Perryman's Case, 3 Coke, 84.) This fiction is indulged to satisfy the law, which requires that a delivery, to make a deed effectual, must be the act of the grantor; and as his death would operate as a revocation of the authority of the depository, the intention of the parties would be defeated if a second delivery was required to vest the title. ( Jackson v. Rowland, 6 Wend., 666; Wheelwright v. Wheelwright, 2 Mass., 447.)
The making of a deed in escrow, presupposes a contract, pursuant to which the deposit is made; it implies an arrangement between the grantor and the party who is to perform the condition; and when the one has agreed to convey when the condition is performed, and the other to perform the condition, and the deed has been placed in escrow, to carry out the purpose as defined in the contract or arrangement between the parties, without any reservation, express or implied, on the part of the grantor, when the deposit is made, of a right to recall the deed, then the authorities are that the delivery cannot be revoked by the party making it, so long as there is no breach by the other of the condition upon which it was made. (Perkins, § 141; Graham v. Graham, 1 Ves. Jr., 272; Miller v. Parker, 2 Metc. [Ky.], 616; Cook v. Brown, 34 N.H., 476; Shirley v. Ayres, 14 Ohio, 308; Washburn on Real Prop., 268.)
If the deed of June 29, 1870, was deposited in escrow strictly according to the terms of the contract of June 23, 1870, Mrs. Miller could not afterward recall it; and the grantees, on showing that Mr. Stanton had performed his contract, would be entitled to its possession as a muniment and evidence of their title; and the court, in the exercise of its equitable jurisdiction would compel its delivery. (Story Eq. Jur., § 703.) But it was competent for Mrs. Miller, when she deposited the deed with Mr. Benedict, to annex any condition to its delivery to the grantees which she saw fit to do, and to reserve the dominion over it, or the right to withdraw it at any time from the possession of the depository. She may have violated the spirit and perhaps the letter of her contract if she in any way qualified the delivery or annexed any condition other than that contemplated by the contract. But the court can only give effect to the transaction as it actually was, and although it is admitted that Mrs. Miller ought not to have retained the power to recall the deed, if in fact she did so, and exercised it, the plaintiffs are put to some other remedy; they cannot take title by a deed which the grantor neither delivered herself nor put in the power of any other person to deliver for her.
The learned judge at Special Term found, upon evidence which authorized the finding, that when Mrs. Miller entered into the contract she was advised by her counsel, who drew the papers, that she could at any time, at her election, put an end to the arrangement therein provided, subject only to a liability for damages, and that she relied upon this advice in making the contract. The deed, made a few days after the contract, was deposited by Mrs. Miller with her counsel, Mr. Benedict, together with a written declaration of Mrs. Miller to the effect that she had executed the deed pursuant to the contract and delivered it in escrow to Mr. Benedict, for the use of the grantees at her decease, subject to the performance by Mr. Stanton of his contract. This declaration is to be considered in connection with the fact, clearly to be inferred from the evidence, that the deed was delivered upon the parol understanding between Mrs. Miller and Mr. Benedict, that she might at any time recall it, and put an end to the bailment. The condition upon which a deed is delivered in escrow may be expressed in writing or rest in parol, or be partly in writing and in part oral. The rule that an instrument or contract made in writing inter partes, must be deemed to contain the entire agreement or understanding, has no application. The direction to Mrs. Miller's agent was not a contract, and the written authority given by her did not preclude the defendants from showing by proof aliunde that it was to be exercised subject to her right at any time to terminate the agency. There was no estoppel created, as the evidence shows that Mr. Stanton was not apprised of the character of the deed and was not a party to the transaction between Mrs. Miller and Mr. Benedict. The subsequent direction of Mrs. Miller to the depository, to destroy the deed, amounted to a revocation, and the deed became from that time a nullity.
I have assumed, throughout this opinion, that Mr. Stanton fully performed his contract. This assumption is based upon another, viz., that the general rule applies, that when performance of a condition precedent in a contract is prevented by the party to whom performance is due, the latter cannot allege non-performance by the other party as a defence. Whether a court of equity, when called upon to enforce the specific performance of a contract, will, in all cases, regard that as done by one party which he was ready to do, but which he has been prevented from doing by the other, and administer the special relief demanded as though there had been actual performance by the party demanding it, has not been considered, and is not intended to be decided.
This opinion leads to a reversal of the order of the General Term and the denial of the motion for a new trial.
All concur.
Ordered accordingly.
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