Bryer v. . Stewart , 3 N.C. 111 ( 1800 )

The question is, whether the endorsement be part of the bond; for if it be, then an award made within the time limited by the endorsement will be good. I agree with those who say that to be a part of the deed the endorsement must be made before the delivery thereof; but then if a deed be delivered and fail of its effect, and the terms of it be to be altered, and such alteration be accordingly made, it is no longer the old contract, but a new one; and in order to effectuate the new contract, the deed containing the same must be delivered. The case in Cowper where husband and wife mortgaged the lands of the wife, and after the death of the husband she wrote to the tenants to pay rent to the mortgagee, this was construed to be a new delivery, because tantamount to a new assent to the contract, and, is, in my opinion, decisive of the present; for if that act amounted to a new delivery where the widow never had the deed in her hands, how much more will the circumstances in this case amount to a delivery, when the deed actually was in the defendant's hands, and the endorsement signed by him, and the whole paper redelivered to the obligee? This made it to be a new deed in toto; and consequently the endorsement, being before the latter delivery, is a part of the deed; and an award made before the 8th of May is good.

Judgment for the plaintiff.

NOTE. — See McKee v. Hicks, 13 N.C. 379; Davenport v. Sleight,19 N.C. 381.