The opinion
The opinion of the court was delivered by
Hebard, J.
The only question raised by the excepting party is in relation to the decision of the court in excluding a certain deed offered by the plaintiff. The action is assumpsit, brought to recover damages for the non-performance of a contract in writing, entered into by the defendant for the delivery of the possession of a piece of land, which the plaintiff alledged that the defendant had conveyed to him, and for not leaving on the premises a quantity of manure that the plaintiff alledged that the defendant had sold to him.
By the facts detailed in the bill of exceptions, the main question on the trial in the county court was in relation to this written contract, and principally in relation to the manner in which the plaintiff became possessed of it. The case finds that the deed of the land, and the note for the purchase of the same, together with this contract, were all deposited with a third person, to be by him delivered upon certain conditions. And the case also finds that those conditions were not complied with. The deed appears to have been duly executed and recorded, and the plaintiff offered the deed in evidence, but the defendant objected to it, on the ground that it had not been delivered.
The delivery of a deed, or other writing, is as necessary to its validity as its execution, and it only takes effect from its delivery; and before this deed or contract could have any efficacy, or create any liability upon the defendant, there must have been a delivery. The mode of trial sometimes changes the mode of proof. If the issue in this case had been tried by a jury, and this testimony in relation to the delivery of the papers was to have been passed upon by the jury, perhaps the only way would have been to have admitted the deed and contract, and let them go to the jury together, to be disposed of under the charge of the court, as they should find the other facts. But when the issue is tried by the court, and the facts are found b.y the court, instead of the jury, this necessity does not *566 exist. The facts having been heard by the court, in relation to the delivery, the court could as understandingly dispose of the question about the deed, without receiving it, as by receiving it. If the deed and contract were never delivered, so that the plaintiff; by the terms and conditions attached to them, had no right to their possession, they would not avail him; and thus, by rejecting the papers, the court virtually passed upon the plaintiff’s right of action. All this the court did decide, and, however much they erred in judgment upon the facts, that cannot be assigned as error in law.
Judgment affirmed.