#### DEN ON DEMISE OF ELIJAH CHASTIEN vs. DANIEL PHILIPS.

Where a deed was delivered merely as an escrow, and never absolutely, was not registered and was finally destroyed by the maker, by the oonsent of the party, to whom it purported to be made, it cannot constitute a color of title.

Appeal from the Superior Court of Law of Haywood County, at the Fall Term 1849, his Honor Judge Ellis presiding.

This action was commenced September 29th, 1847, and' the declaration is on the several demises of Elijah Chas-tien and Samuel Higdon. T)n the trial, a title was deduced from the State to Chastien, and it was shewn that, early in 1841, he conveyed in fee to the other lessor. On the part of the defendant, evidence was then given, that, prior to 1839, Chastien contracted to Sell the premises in fee to Leonard Higdon, and gave his bond or covenant to make the conveyance, when the purchase money should be paid: that the price was fully paid, and that, in the latter part of that year or early in 1840, the said Leonard sent one Coward to Chastien, who lived in South Carolina, to get a deed, and that Chastien executed a deed, but, in consequence of Leonard Higdon’s omission to send Chastien’s covenant by Coward, he, Chastien, refused to deliver it absolutely, and put it into the hands of the said Coward, with directions to deliver the deed to the said Leonard, on his surrendering to that person the bond which Chastien had given : that Coward, upon his return, shortly thereafter, offered to deliver the deed to the said Leonard, as directed by Chastien, if he, the said Leonard, *256would surrender to him the said bond or covenant; but the said Leonard refused to surrender the same or to accept the deed sent, and remarked to Coward, that he might hold on to the deed, until he should pay him a small sum, which he owed him ; and that, about a year after-wards, the said deed was destroyed by Chastien, by the consent of the said Leonard, without ever háving been delivered to him personally, or otherwise, than as above set forth ; and, by the direction of the said Leonard, a deed was then made by Chastien to the said Samuel Hig-don. Evidence was further given on the part of the defendant, that, in June 1840, certain executions issued by a justice of the peace, against the estate of the said Leonard, were levied on land, and orders of sale made thereon in the County Court, and that writs of venditioni ex-ponas were then issued and the premises sold by the sheriff on the 5th of October 1840, to a person under whom the defendant claims; and, that, in December 1840, the defendant claimed the land under the title derived from the sheriff’s sale, and, upon his demand, the said Leonard surrendered the possession to the defendant, who then entered, and, in JulyT84l, the sheriff made a deed to the purchaser, and the defendant continued in possession up to the trial. On this, the Court'held, that the purchaser did not acquire a title under the sale of the sheriff, because the writs of venditioni exponas did not describe or include the premises. Thereupon, the counsel for the defendant insisted, that the defendant was entitled to the benefit of the possession' by Leonard Higdon and that it perfected the defendant’s title.

The Court instructed the jury, that, supposing the evidence to be true, it established the due delivery of the deed, so made, to Leonard Higdon by Chastien ; and that the possession of the premises by the said Leonard and by the defendant together, for more than seven years after the deed was delivered to Coward by Chastien, was such *257an adverse possession under color of title as vested the title in the defendant. There \yas a verdict for the defendant, judgment and appeal.

J. Baxter and G. W. Baxter, for the plaintiff.

N. W. Woodfin and Gaither, for the defendant.

Ruffin, C. J.

As the sale and conveyance by the sheriff are to be deemed void in the present state of the case, they are to be put of our consideration, except so far as they may be color of title and enable the defendant to make a title under the statute of limitations. But he cannot do that, because the action was commenced in less than seven years from the defendant’s entry, and, indeed, from the sheriff’s sale. It is clear, then, that the title cannot be in the defendant, and the instruction on that point was erroneous. The title, therefore, must be in Chastien or one of the Higdons ; and unless it be in Leonard Higdon, the plaintiff must recover on the demise of one of the other two persons. The Court holds, that Leonard Higdon has not the title. The deed to him, if delivered absolutely, did not pass the title, for want of registration ; and, therefore, at most, it could only be color of title. Now, supposing that the possession of the defendant may be connected with that of L. Higdon, so as, together, to constitute a sufficient length of a posses* sion, yet it cannot enure to vest the title in L. Higdon, because his possession was never adverse to Chastien, and, indeed, the supposed deed to him never, in point of law, became a deed. He entered orlgiually as vendee under articles, and, of course, that possession was not adverse to his vendor. Its character, however, would be changed by the execution of a deed and its acceptance by him ; and it has been held, that a deed, not otherwise defective, is color of title, though not registered. But it seems impossible to allow that operation to an instru-*258znent, which is not only unregistered, but which never took effect as a deed — being merely an escrow and, by the consent of the party, to whom it purported to be made, destroyed by the maker before a final delivery to the par* ty. It is true, there cannot be a delivery to the party himself as an escrow ; and a deed thus delivered is absolute.

It is likewise true, that an unconditional delivery to Coward, as the agent of L. Higdon, would have made the deed complete at once. But there was, in fact, no such unconditional delivery in this case. It is no where laid down as a principle, that a delivery to one, who is the agent of the bargainee, cannot be conditional, but must be absolute, as if the delivery were to the bargainee himself. Nor can that be the law, since, after the bargainor’s refusal to deliver the deed absolutely to the agent of the other party, there is no reason, why the bargainor may not make the same person his agent to take the deed, and deliver it, upon the performance of certain conditions by the other party. There is no repugnancy in such a transaction, as there is, when the delivery is directly* to the party himself; and, therefore, the instrument may be allowed to operate according to the actual intention of the parties, which is always the justice of a case and to be ascertained when the intention is not contrary to law. — • It is plain, then, that this deed was not delivered to Cow. ard, as the agent of Leonard Higdon, but that it was put in his hands, as the agent of Chastien, to be delivered upon getting up the original articles of sale ; and that it never was delivered to L. Higdon, but, when offered, was rejected by him. It was, therefore, no more than an escrow at any time during its existence, and it so continued, by reason of the party’s own refusal to accept on the conditions specified. Now, it cannot be held, or even admitted, that L. Higdon held possession of the premises under the deed, which he had not received, but had thus explietly *259rejected ; and tbe very idea of possession under color of title is, that it is a possession taken or held by one under an instrument, which purports to convey, or under which he claims, an estate in the land.

That person never did set up any claim under the deed 5 but, after its execution, as before, his possession was under, and merely subsidiary to, the title of his vendor. The subsequent surrender by him of the possession to the defendant could not affect this point, under any circumstances. But, it is plain, that it proceeded altogether from a mistake of the parties, as to the validity of the sheriff’s sale ; for, if it had.been good in other respects, it would have been effectual under the act of 1812, without regard to the deed from Chastien, as L. Higdon had, before, fully paid for the land and Chastien held^upon a pure trust for him. Whether his title was legal or equitable then, he conceived himself obliged to let the purchaser from the sheriff into possession; and no inference can be drawn from that fact, which can operate one way or the other on the deed. There has not, therefore, been seven, years possession, under color of title, adverse to the lessors of the .plaintiff, and there ought to have been a verdict against the defendant, upon the one demise or the •other.

Pbr Curiam Judgment reversed and venire de nova.