Page:Notes to Clark on contracts (IA notestoclarkonco00graviala).pdf/11

 ment) to be the acknowledgment of a deed, was admitted to record as a deed, the land conveyed by it at once transferred on the land books for the purposes of taxation from the vendor to the vendee (which could not be legally done unless it was a conveyance of the land—Chapter 183, Sec. 30, Rev. Code, 1819), with evidence tending to show the payment of taxes thereon, acts of ownership exercised over and possession taken of part of the land, I think the question whether or not it had been properly sealed before its delivery clearly ought to be submitted to a jury. And if, under such circumstances, it would be proper to submit the question to the jury where the original is offered in evidence, is there any good reason, where the original is lost, and a copy offered in evidence, under the same circumstances, why the question of sealing should not also be submitted to the jury? . . . The weight of authority, meager as it is, and the better reason, seem to be in favor of allowing such an instrument to go to the jury, for it to say, upon all the evidence in the cause, whether or not the original instrument was properly sealed. Whether such paper was a sealed or unsealed instrument was formerly treated as a matter of law, to be determined by the court, but seems now considered a question of fact, and is in all cases submitted to the jury. Tayl. Ev., Sec. 149 (old ed sec. 128), note." See, also, 1 Va. Law Reg., p. 518, note by the editor to Reusens v. Lawson. It will be observed that the decision in Reusens v. Lawson is only to the effect that "under such circumstances," the question whether an original deed, of which a copy was offered in evidence, was under seal should be submitted to the jury. It will require further decisions to show whether the full array of facts as recited by the Court is necessary to send the question to the jury, or whether some of them might be absent without changing the result. See the language of Judge Cooley in Starkweather v. Martin, 28 Mich. 471, quoted in Reusens v. Lawson, 91 Va. 249.

Can a deed be delivered as an escrow to the grantee or obligee himself? Clark, 55-6. See Anson on Contracts, p. 53, where the doctrine that a deed cannot be delivered as an escrow to the grantee or obligee is spoken of as the "old rule,"  