This cause was heard in Department One, and reversed. A rehearing was granted. Upon a careful consideration of the questions presented, 'and more fully argued at the hearing in Bank, we are of the opinion that the judgment in department should not stand as the judgment of the court.
The deed from the appellant Huff to respondent was, in the hands of R. H. McDonald, an escrow. (Cannon v. Handley, 72 Cal. 133, 140; Schmidt v. Deegan, 69 Wis. 300.) And being so, it could not be revoked by the appellant. (Cannon v. Handley, supra; Knopf v. Hansen, 37 Minn. 215.) The depositary was not the agent of the vendor alone, but of both parties, and, as such, was bound to deliver the instrument on performance of the condition provided for in the contract under which he held it. (Cannon v. Handley, supra; Shirley v. Ayres, 14 Ohio, 307; Schmidt v. Deegan, supra.)
Here were two written instruments, signed by the appellant Huff, one an agreement to convey on certain conditions, which was fully executed by delivery to the depositary; the other a deed, made in pursuance of the agreement, and to become operative upon the happening of the conditions set forth in said agreement, and its delivery by the depositary to the respondent.
The first of these was binding upon the appellant, from its delivery to the depositary, without the signature of respondent, or any contract in writing from him. (Code Civ. Proc., sec. 1973; Civ. Code, sec. 1624; Rutenberg v. Main, 47 Cal. 213, 219; Vassault v. Edwards, 43 Cal. 458, 464; Moss v. Atkinson, 44 Cal. 4.) And the respondent, having agreed, verbally, to the terms of such 283 written agreement to convey, was thereby estopped to enforce the collection of his debt until the time fixed for the payment of the money in pursuance thereof, or, in default of such payment, the delivery of the deed. (Vassautl v. Edwards, supra; Cagger v. Lansing, 57 Barb. 421, 424; Worral v. Munn, 5 N. Y. 229; 1 Reed on Specific Performance, sec. 365; Schmidt v. Deegan, supra.)
The findings of the court below show an acceptance of the deed by the attorney of the respondent, and that he, by his agent and attorney, duly executed a receipt in full of all demands against the defendant Huff, and deposited the same with the depositary for his use.
This shows a sufficient delivery and acceptance of the deed and release of the indebtedness.
The fact that such delivery and release did not take place until after the time provided in the agreement is immaterial. Certainly it is not a matter about which the appellants should be heard to complain under the circumstances of this case.
The title to the property in controversy vested in the respondent by the delivery of the deed to him, and as the court finds that the appellant Herrick took his deed with full knowledge of all the facts, he obtained no title. As against him, the deed from the defendant Huff to the plaintiff must be held to have taken effect at the date of the contract authorizing its delivery.
The judgment and order denying a new trial are affirmed.
Searls, C. J., McFarland, J., Paterson, J., Sharp-stein, J., and Thornton, J., concurred.
Rehearing denied.
