#### George Eichlor v. Stephen N. Holroyd.

1. Delivery of deed without performance of condition.—The delivery to the grantee of a deed left in the hands of a thhcl party, without the grantee performing the condition upon which his right to receive it depended, vests no title in him, and the grantor may recover it by action or have it removed as a cloud upon his title.

2. Same—Agency—Ratification.—Where a deed was placed in the hands of a third party to he delivered to the grantee only in case he paid the balance of the purchase money, and such party delivered the deed to the grantee without his paying such balance, the grantor would have his election to repudiate or affirm such action. If be chose the latter and recovered judgment against the grantee in an action of assumpsit, such ratification would discharge the agent from all liability for deviating from his instructions.

Appeal from the Circuit Court of De I£alb county; the Hon. A. H. Barry, <J udge, presiding.

Opinion filed January 16, 1885.

Hoiroyd being the owner of 120 acres of land in DeKalb comity, subject to certain incumbrances, sold his equity of redemption to one Grabbe, for $800, the grantee, to assume and pay the incumbrances. The $800 was to be paid before the delivery of the deed. The sum of $500 was paid, and Grabbe let into possession. Hoiroyd made his deed and gave it to Eichlor, the appellant, with instructions to deliver it to Grabbe when the balance of $300 was paid, and if not paid to return the deed.

Grabbe, by some means, obtained the deed.from theappellant without paying the $300. This was in the autumn of 1877, and the following spring appellee commenced bis action in assumpsit in the circuit court, against Grabbe, to recover the $300, and obtained judgment, but never succeeded in collecting it. The prior mortgages upon the land not being paid, the premises were sold in November, 1879, under the power therein contained, to one Loomis, who received a trustee’s deed therefor.

*658This suit was instituted by appellee in May, 1880, against the appellant, to recover the $300, the action being in case and the gravamen the wrongful delivery of the deed to Grabbe without receiving the $300, and the consequent loss of it through the insolvency of Grabbe. He recovered in the court below, and the defendant below appealed.

Messrs. Dunton, Brown & Pratt, for appellant;

that no title vests in the grantee who obtains possession of a deed without performance of the condition, cited Harkreader v. Clayton, 56 Miss. 383; Stone v. Duvall, 77 Ill. 475; I. C. R. R. Co. v. McCullough, 59 Ill. 166; Stanley v. Valentine, 79 Ill. 544.

As to ratification: Searing v. Butler, 69 Ill. 575; Ewell’s Evans on Agency, side page 61, 65; Meyer v. Morgan, 51 Miss. 21; Monk’s Underhill on Torts, 337; Bird v. Randall, 3 Burr. 1345.

Mr. Harvey A. Jones, for appellee;

as to agent’s misconduct, cited Story on Agency, §§ 218, 219.

As to ratification: Harris v. Miner, 28 Ill. 136; Dougherty v. Crowell, 3 Stockt. (N. J.) 201; Seely v. North, 16 Conn. 98.

Pillsbury, J.

The delivery of the !deed to the grantee without his performing the condition upon which his right to receive it depended, vested no title in him, and the appellee could have recovered it bv action or have it removed as a cloud upon his title. Stone v. Duvall, 77 Ill. 475; I. C. R. R. Co. v. McCullough, 59 Ill. 166; Stanley v. Valentine, 79 Ill. 544; but instead of so doing, he brought his suit against the grantee and recovered judgment for the balance of the purchase money, thereby ratifying the act of the appellant in delivering the deed, as the suit could have been maintained only upon the ground that the deed was valid. Story on Agency, Sec. 259; Peters v. Ballasteir, 3 Pick. 495; Smith v. Hodson, 4 R. I. 211; Smith v. Cole, 3 Pick. 232. The effect of this ratification by him, he well knowing-*659at that time all the facts, was to discharge the appellant from all liability for deviating from his instructions. Story on Agency, Sec. 243; Cairnes v. Bleeker, 12 Johns. 300; Wilson v. Tunman, 6 M. & G. 230.

The appellee had his election either to repudiate the action of appellant and re-invest¿himself with the record title to the land, in which event he could have recovered the necessary expense from appellant, or to affirm the act of his agent and recover the purchase money from the grantee by action, or enforce a vendor’s lien upon the land.

He chose to hold the grantee personally liable and now has a judgment against him, and it would seem that he is concluded by his election and can not have judgment against both. Kingsley v. Davis, 104 Mass. 178.

These conclusions render it unnecessary to notice the question as to the measure of damages in case the appellant is liable for any sum.

The judgment of the court below will be reversed.

Judgment reversed.