Ackert v. Pultz , 7 Barb. 386 ( 1849 )

By the Court, Barculo. J.

The husband and wife (now plaintiff) executed a deed, and deposited it as an escrow, to be delivered on the execution of a certain bond and mortgage, the husband subsequently requested the holder of the deed to deliver it; waiving the performance of the condition, the execution of the mortgage. The judge at the circuit, charged the jury, that the consent of the husband to the delivery of the deed, would bind the wife, and that if they found that he had waived the performance of the condition, and requested, and consented to, the delivery, it passed the title, and she could not recover. The jury found for the defendant.

I think the charge was right. The only mode by which the plaintiff could convey was the statutory mode, by signing and acknowledging in a particular form. She having done this, had no power to make an agreement as to the escrow. That was the act of the husband. He had a right to waive it; and having done so, her right is gone. The motion for a new trial must be denied.