ESCROW

• Date: 06 February 2019

(1) "At p. 178 of vol. 2 of the 2nd edition of Words and Phrases Legally Defined, the following notes appear in respect of "escrow": -"Escrow: A deed may be delivered as an escrow (or scroll), that is, as a simple writing, not to become the deed of the party expressed to be bound thereby until some condition shall have been performed; for example, not until I the grantee under a deed of conveyance on sale or mortgage or of reconveyance on discharge of a mortgage shall have paid the consideration money, or not until the person to benefit under the deed shall have executed some other deed or document as agreed with the party delivering the escrow. It is not necessary that the delivery of a deed as an escrow should be made in any special form or accompanied with any particular words (11 Halsbury’s Laws (3rd edn.) 348). There are two kinds of delivery recognised by the law in this connection (delivery of a deed), one absolute and the other conditional. If a document is delivered, either to a party to it or to a stranger, with an intimation, to express or implied, that it is not to become effective until some condition has been performed, it is called an escrow. In such a case the deed is inoperative until the condition is performed, but upon performance it takes effect as a deed without further delivery, and relates back to the time when it was delivered as an escrow. A delivery of a deed as an escrow is a final delivery in the sense that it cannot be withdrawn by the grantor before the grantee has had an opportunity to decide whether to fulfill the condition or not. A deed delivered subject to a condition and subject to such a right of withdrawal is not an escrow, but merely an undelivered deed. A common example of delivery as an escrow occurs when a vendor executes a deed of conveyance and gives it to his solicitor for transference to the purchaser upon payment by the latter of the purchase money. Were the rule otherwise the purchaser might keep the legal estate passed to him under the fully executed deed and raise difficulties by refusing to pay the money (Cheshire’s Modern Real Property (10th edn.) 679, 680). "A deed may be delivered on a condition that it is not to be operative until some event happens or some condition is performed. In such a case it is until then an escrow only." Macedo v. Stroud, (1922) 2 A.C. 330, P.C, per Cur., at p. 337." - Per Odeyemi, J.C.A. in Dalfam v. Okaku Suit No. C.A./A/39/2000; (2001) 35 W.R.N. 43 at 66 -...