#### BENJAMIN L. WESSON vs. LEVI STEPHENS, ADM’R. OF CALEB LAWRENCE.

A delivery of a deed to a third person for the-use of the grantee, makes it ef-feetual fronrthe instant of such delivery, although the person is not the a gent, hut a stranger to the grantee, provided the grantee afterwards assents to it.

Where the grantor inserts in his deed a release for the purchase money, when he has not actually received it or taken' a security for its payment, Equity will give him- relief.

This cause was set for hearing at the Spring Term 1843 of Rockingham Court of Equity, upon the bill, answer and proofs, and then, by consent of parties, ordered to be transmitted to the Supreme Court.

The following is the substance of the pleadings and proofs :

The plaintiff in his bill states, that he sold in fee simple a tract of land to the defendant’s intestate,- lying in the county of Rockingham, adjoining the lands of Pi L. Morgan and others, containing 235 acres, for the sum of $300, to be secured by bond payable the first day of September,- 1842: That he executed a deed of bargain and sale for the said tract of land, and delivered it to P. L. Morgan for the use of the vendee, who thereafter accepted the said deed and took possession Of the land : That the- deed was written in the common form, and expressed in its face a full receipt and release of the purchase money: That the vendee omitted to execute the bond, when he received the deed, he having no bond written, or pen and paper then and there to write it, but he promised to give it to the plaintiff’s agent when he should see him again. The vendee shortly thereafter died, *560without ever giving the bond for the purchase money for the said land. The bill prays, that the administrator be decreed to pay the purchase money out of the assets of the vendee.

¿[efencjant jn bis answer says, that he has no knowledge of any contract made by his intestate with the complainant for the lands described in the bill, that he iound no such deed for the land, as that mentioned in the bill, among his intestate’s papers, or any where else. Defendant states, that his intestate told him that he had made some improvements on the said land, but he denies that he ever took possession of the land. He denies all knowledge of Morgan’s delivering any deed for the land to his intestate: He admits that he has assets.

P. L. Morgan deposes, that the contract for the purchase of the land was made by the parties as-stated in the bill: That the plaintiff executed a deed in due form of Jaw to-Lawrence, the vendee, for the land; he was a witness to it, the deed was delivered by the vendor to him, for the use of Lawrence, and he, the vendee, accepted the deed, and promised to give a bond for the purchase money, ($300) payable the first day of September, 1842 : That the vendee sent for the witness just before his death, to come and receive the' bond, but died before he went.

John Richardson deposes, that he saw Morgan deliver the deed to Lawrence; that it was done according to contract ; witness then lived on the land, and requested to rent it of the vendee, who refused, stating that he was coming there to live himself.

A, Barham deposes, that the vendee employed him- to: raise a house on the land, which he did. Lawrence told him that he had purchased the land for $300, payable the-first day of September, 1842.

Ber.j. Barham proves nearly the same thing, and that the’ vendee died before the house was finished, and that his administrator paid for the work done on the house.

Graham, for the plaintiff.

Morehead for the defendant.

*561Daniel, J.

A delivery of a deed'to a third person, for the use of the grantee, makes it effectual from the intsant of such delivery, although the person is not the agent but a stranger to the grantee, provided the grantee assents to it, which in this case he did. Alford v Lee, Cro. Eliz. 54.— Garnons v Knight, Barn. &. C. 671. The witnesses do not prove directly that the deed contained a release clause of the purchase money, but they say that the deed was “in due form.” We must understand that it did contain such a release, and therefore that the plaintiff is entitled to the decree he prays.

Per CuRrAM. Decree accordingly.