Jackson, ex dem. Gratz and others, against Catlin, 2 Johns. 247

Kent, Ch. J. delivered the opinion of the court. The title of the lessors of the plaintiffs, as heirs to Croghan, having in the first instance been made out, the merits of the defence depend on the legal operation and effect of the sheriff’s sale, in 1774, and of the sale by the surveyor general, under the act of the 22dof March, 1788. I shall first consider the effect of the sale by the sheriff.

This sale was made at auction, in July 1774, and a deed was executed on the 9th of November following, in favour of Jones, the purchaser, and delivered to James Duane, as an escroto; and to be delivered to Jones on payment of the purchase-money. This fact appears, not only from the testimony of a subscribing witness to the deed, but from the petition of William Peters, as recited in the act of March, 1788; and it is conclusive proof, that the sale was not intended to be absolute, until the purchase-money was paid. There is nothing in the case to warrant the idea that the sale was upon credit.

It was, no doubt, the understanding of the parties, that the deed was to be executed and the money paid, within a reasonable time, or with all convenient speed ; and that until the money was paid and the deed delivered, the sale was not to operate, and the title was to continue in Croghan. This is not only the obvious meaning of the transaction, but it is the conclusion of law. According to the decision in Simonds v. Catlin, (2 Caines, 61.) a sheriff’s sale of lands is within the statute of frauds, and requires a deed or note in writing, to pass the estate. The deed in question was clearly an escrow.

It was left with Duane to be delivered over to Jones, on payment of the purchase-money. This was a plain and specific condition, to be performed before the deed could operate. A deed is delivered as an escrow, when the delivery is conditional, that is when it is delivered to a third person, to keep until something be done by the grantee ; and it is of no force until the condition be fulfilled. The condition may consist in the payment of money as well as in the performance of any other act. (S. Touch. 55. 7 Viner, tit. faits.

O. pl. 4.) There is no weight in the observation made by the counsel, that the deed was not delivered to a stranger. Duane was attorney to Peters, the plaintiff in the execution, but he was still 'a stranger to Jones, the purchaser. There was no privity existing between them. If the deed did not pass the estate for want of delivery, the return uPon the execution clearly did not. The case of Simonds and Catlin settled this point. The note, or memorandum in writing, must specify with sufficient certainty, the lands sold, and who was the purchaser, for it does not otherwise answer the intent of the statute.

The return, in the case before us, has no manner of certainty'. It states only, that the sheriff had sold of the lands of the defendant to the amount, of the demand. My opinion then is, that neither the sale, nor the deed, nor the return on the execution, passed the estate. We are next to see whether the condition has at any time since been perform-’ ed, so as to confirm the sale and give effect to the deed. The petition of William Peters, to" the legislature, in .1788, admitted that the purchase-money had not then been paid, and that the deed was still remaining in the hands of Duane.

The title .to the premises, of course, continued in Croghan, for the fee cannot be in abeyance, but must .abide in some, person. Not having passed* to Jones, by the sale, for the want of payment, it rested in Croghan. This leads me to consider, in the second place) the effect of the act of attainder and of the sale by the surveyor-general. The act of the 22d October, 1779, attainted, among others, Thomas Jones, of the offence of adhering to the enemies of this'state.

This Was a specific offence, and was not declared or understood, to amount to treason, because many of the persons attainted had never owed any allegiance to this state. The forfeitures arising from .this attainder, must be sought for in the act, and no where else. By this act, Jones forfeited “all his estate, both real and personal, held or claimed bj' him, whether in possession, reversion, or remainder, and also all estates and interests claimed by executory devise or contingent remainder.” It is then to be examined, whether the state, by this act of attainder, acquired any right to perform the condition.

The expression, real estate, signifies such an interest as the tenant hath in land. Jt is the condition or circumstance in which the owner stands, with regard to his property. (1 Inst. 345, a. 2. Black. Com. 103.) It implies, Here the statute defines the estate. It must be an therefore, a right, interest, or ownership existing in the soil, interest in the land existing in possession, reversion, remainder, by .executory devise, or contingent remainder. The condition in question was neither of these. No in* •terest, whatever, in the premises had vested.

Jones bad nothing, not even a scintilla juris, in the land, which he; could assign so as to enable tbc assignee to perform the condition. A mere posibihty is not the subject of a grant,unless it be a.possibility coupled with an interest. (Chep. Touch. 414. pl. 18. 38 Viner. tit. Possibility. B. tit. Grant. N.) In Marks v. Marks, (10 Mod. 419. 1 Str. 129.) it was admitted to be a maxim of law, that a stranger could not take advantage of a condition, for it was not assignable. An assignee must be privy in estate, and have an interest in the condition, or he cannot perform it. (Litt. sec. 330. Co.

Lit. 207. b.) Such general words as those used in the act of attainder, have never been construed, in any period of - the English law, as extending to a condition. At common law, no condition, use, or mere right of action was forfeited to the king upon attainder of treason, notwithstanding such attainder reached the lands and tenements. (3 Inst. 19. 1 Hale 244. 247. 2 Hawk. 637.) This restriction led to the statute of 33 H. 8. c. 20. which declared, that uses, entries, and conditions, as well as possessions, reversions, and remainders, should be forfeited upon every such attainder.

And since that statute the only questien has been, whether the condition was personal, and inseparable from the party at-tainted, or could be performed by the crown. The statute of 26 H. 8. c. 13. declaring the forfeiture in treasons, extended it to all estates of inheritance, in use or possession, in lands, tenements, and hereditaments, by any right, title, or means, See. These words are certainly as broad as those used in our act of attainder; yet they were not considered as including a condition, or a mere right of action. It required the express words of the statute of 33 H. 8. to embrace those cases.

The decisions which have since been made in England, on the question of the forfeiture of conditions, are instructive examples of the strictness with which the courts have construed this right of forfeiture since the statute of H. 8. and of the independent spirit displayed in the discussions on this subject, even under the enormous pressure of the prerogative of the Tudors and Stuarts.

In the Duke of Norfolk's ease, 11 Eliz. a personal condition was held not to be forfeited by attainder for treason ; and in Englefield’s case, 33 Eliz. (7 Co. 11.) it was ruled that a condition, not being personal, might be performed by the Queen, and yet it was not thought prudent to rely upon this judgment, and the statute of 35 Eliz. confirmed the forfeiture. The case of Wardner v. Hardwin, (Latch, 107. Wm. Jones, 137.) on the question whether the condition was forfeited, is said to have walked through all the courts in Wesiminster-Hall, and the court of king’s bench was at last equally divided. In Smith v.

Wheeler, (1 Mod. 38. 1 Hale, H. P.

C. 246.) it was decided that the trust was personal, and not forfeited by attainder, notwithstanding the attainted person had the jus disponendi, and was according to Sir Matthew Hale, “.guilty of the execrable murder of the king..1* In every view, therefore, of this question, whether we consider the technical force and meaning of the words used, or the rule that such a possibility is not assignable j whether we consider the principle of the common law, that á condition was not subject to forfeiture for treason, or the series of decisions since the statute of H. 8- showing the strictness with which such forfeitures have been regarded, 1 am clearly of opinion, that the attainder of Jones did not vest in the state, any right to pay the purchase-money and take the land.

The state was a stranger to the condition, and had no right to perform it. Jones was to be considered as civilitcr mortuus by the act of attainder -, but whether his legal representatives were competent to perform the condition it is unnecessary to ihquire, because there is no evidence before us, that any snch performance was ever attempted. The heirs of Croghan have, therefore, an existing title to the premises,- unlesss the sale by the surveyor-general was an alienation of their right.

The sale was made under tjjC act 0f tjje Q2d of March, 1788, which, so far as related to this subject, was a private act, and liable to the rules of construction applicable to such* statutes. England, a general saving clause is now always added, at the close of every private act, of the rights a'd interests of all persons, except those whose consent is obtained ; and before this practice of inserting the saving clause, it was held that a private act did not bind strangers. (2 Black.

Com. 345. 4 Cruise’s Dig. 518, 9.) In Boswell's case, (25 and 26 Eliz. cited in Barrington's case, 8 Co. 138, a.) it was resolved in the court of wards, that when

an act of parliament maketh any conveyance good against the king, or other person-certain, it should not take away, the right of any other, although there be not any saving in the act. This just and liberal decision, and which is also warranted by the opinion of Sir Matthew Hale, (1 Vent. 176.) is perfect!}7 applicable to the present case. The act directs only the surveyor-general to sell the lands so purchased by Thomas Jones, and to execute a deed without a clause of warranty; but docs not declare the operation of this deed as against the rights of Croghan and his heirs.

In the language of Barrington's case, this act does not make the deed good, as against any person certain, except it be the state, and therefore, it shall not take away the right of any private person. •It is a mere quit-claim of the right and interest, which the state might have had in the premises, without declaring the extent or certainty of that right.

If the act had declared the sale to be a bar to the claim of Croghan, a very serious question would have arisen on the validity -of á statute taking away private property, without the consent of the owrner, and without any public object, or any just, compensation. But it, is evident that no such operation was contemplated. The act passed, probably, tinder a misapprehension of the rights of the state, rcsuiting from the attainder of jones.

The ’sale was directcd upon the suggestion of Peters, for.the purpose of passing the interest of the state, whatever it might be, valeat quantum valere potest. • The title-of Croghan is not so much as once mentioned in the act, and was undoubtedly ' *f intended to be left to its due weight and effect, in the ordinary course of justice. The court are therefore of opinion, that the plaintiff is entitled to judgment. Judgment for the plaintiff.