perfect, and does not apply to those which v. Butler, 10 L. R. A. 469, 45 Fed. 332; upon their face import that something be- Miller v. Fletcher, 27 Gratt. 403, 21 Am. sides delivery is necessary to be done in Rep. 359; Richmond v. Morford, 4 Wash. order to make them complete." The writ- 337, 30 Pac. 242, 31 Pac. 513; Hubbard v. er cites many authorities in support of Greeley, 84 Me. 340, 17 L. R. A. 511, 24 that text. In 1 Devlin on Deeds, § 314, it Atl. 799. In the latter case it was said: is said: "A deed cannot be delivered to the "An escrow is a deed delivered to a strangrantee as an escrow. If it be delivered to ger, to be delivered by him to the grantee him, it becomes an operative deed, freed upon the performance of some condition or from any condition not expressed in the the happening of some contingency, and deed itself, and it will vest the title in him, the deed takes effect only upon the second though this may be contrary to the inten- delivery. Till then, the title remains in tion of the parties. One of the grounds the grantor. And if the delivery is in the upon which this rule is based is that parol first instance directly to the grantee, and evidence is inadmissible to show that the he retains the possession of it, there can deed was to take effect upon condition." be no second delivery, and the deed must The author thereupon proceeds to quote take effect on account of the first delivery, as a part of the text, and with approval, or it can never take effect at all. And, if from the opinion of Harris, J., in Lawton it takes effect at all, it must be according v. Sager, 11 Barb. 349, in whose opinion to its written terms. Oral conditions canthe following language is used: "Whether not be annexed to it. It will therefore be a deed has been delivered or not is a ques- seen that a delivery to the grantee himself tion of fact, upon which, from the very is utterly inconsistent with the idea of an nature of the case, parol evidence is ad escrow. And it is perfectly well settled by missible. But whether a deed, when de- all the authorities, ancient and modern, livered, shall take effect absolutely or only that an attempt to thus deliver a deed as upon the performance of some condition an escrow cannot be successful; that, in all not expressed therein, cannot be determined cases where such deliveries are made, the by parol evidence. To allow a deed absolute deeds take effect immediately and accordupon its face to be avoided by such evi- ing to their terms, devested of all oral condence would be a dangerous violation of a ditions." cardinal rule of evidence." In Braman v. Bingham, 26 N. Y. 492, the court of appeals said: "The reason given for the rule excluding parol evidence of a conditional delivery to the grantee applies to all cases where the delivery is designed to give effect to the deed, in any event, without the further act of the grantor. 'When the words are contrary to the act, which is the delivery, the words are of none effect.' Co. Litt. 36a. 'Because then a bare averment, without any writing, would make void every deed.' Williams v. Greene, Cro. Eliz. pt. 2, p. 884. 'If I seal my deed and deliver it to the party himself, to whom it is made. as an escrow upon certain conditions, etc.. in this case, let the form of the words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently.' Shep. Touch. 59: Wyhddon's Case, Cro. Eliz. pt. 2, p. 520; Cruise's Dig. title 33, Deeds, chap. 2, § 80. If a delivery to the grantee can be made subject to one parol condition, I see no ground of principle which can exclude any parol condition. The deed having been delivered to the grantee, I think the parol evidence that the delivery was conditional was properly excluded." The authorities to the foregoing effect might be multiplied, of which the following appear to be some of the leading cases: Blewitt v. Boorum, 142 N. Y. 357, 40 Am. St. Rep. 600, 37 N. E. 120; Darling

Counsel for respondent contend that, while there was a manual delivery of the deed, there was no intention to pass title, and that on that theory of the case the evidence admitted was proper and competent to show such fact. While it is not directly contended that the grantee can hold a deed in escrow from his grantor, the argument of counsel, as applied to the facts of this case, would amount in the end to such a position. The leading authorities cited by respondent in support of this position are 9 Am. & Eng. Enc. Law, 2d ed. p. 154; Black v. Sharkey, 104 Cal. 279, 37 Pac. 939; Lee v. Richmond, 90 Iowa, 695, 57 N. W. 613; Steel v. Miller, 40 Iowa, 403; Bunn v. Stuart, 183 Mo. 375, 81 S. W. 1091; Hastings v. Vaughn, 5 Cal. 315. In 9 Am. & Eng. Enc. Law, 2d ed. p. 154, under the heading of "What is Delivery-(c) A Question of Intention," the author says: "The real test of delivery is this: Did the grantor, by his acts or words, or both, intend to devest himself of title? If so, the deed is delivered." By the foregoing language we do not understand the writer to mean that, where the question of the delivery of the deed arises, parol testimony may be introduced tending to show the intention of the parties to such an extent as to control the vesting of title contrary to the express written language of the deed itself, or, in other words, attach

conditions to the deed; and, indeed the au- them until he called for their return, but thorities cited by the author in support of the grantees, contrary to his instructions, the text do not go to such an extent. Coun- placed them of record, and the supreme sel quote at length from Black v. Sharkey, court of Missouri held upon that state of 104 Cal. 279, 37 Pac. 939, where the court facts that no legal delivery ever took place. uses language that would indicate the view The extent to which the intention of the that evidence might be introduced to prove parties enters into the act of delivery of a that the parties did not intend the deed deed is very fairly stated by the author in should take effect according to its terms; 13 Cyc. Law & Proc. p. 561, and the authorbut it should be observed that in that case ities cited in support thereof. It is bethe only question under consideration, and vond controversy that the evidence of dethe only one decided, was whether or not livery must come from without the deed. parol evidence might be introduced to show In other words, a deed never shows upon that the deed which had been duly executed its face nor by the terms thereof a delivery, and was found in the possession of the grin- and parol evidence thereof must necessarily tee had ever been in fact delivered. The be admitted when the question of delivery opinion in that case is by the court com- arises. And it will, perhaps, often be diffimissioners, and makes no reference to the cult to accurately determine the exact exformer case of Mowry v. Heney, 86 Cal. 471, tent to which the intention of the parties is 25 Pac. 17. The latter opinion was by the admissible as to the ultimate result of decourt, and it was there expressly held that, vesting the grantor of title; but such testi"when an absolute deed has been delivered mony should never be considered by the to the grantee, the title becomes vested free court to the extent of governing and confrom any conditions, and its operation can- trolling the express terms of the instrument, not be defeated by parol proof of an inten- where it is clear that a delivery has been tion on the part of the grantor, known to made, even though the parties have misthe grantee, that it should not take effect takenly supposed the legal effect would be except in event of the grantor's death; nor different. Of course, such evidence would is parol evidence admissible to show that be competent if it should be shown that unthe delivery of the deed to the grantee was der no circumstances, and in no event, and subject to any condition not expressed there- under no conditions was the title ever to pass in." We cannot, therefore, view the Black- from the grantor, because such a showing Sharkey Case as in any way overruling or would disprove a legal delivery. It would modifying Mowry v. Heney. Hastings v. show a failure to consummate the contract Vaughn was to the same effect as the lat- and sale of the property. But where it is ter case. In Lee v. Richmond the Iowa the intention of the parties for the title to court held that there had been no delivery pass upon any contingency or in any event of the deed, and that the instrument had from the grantor to the grantee, and the reached the hands of the grantee, not by deed is delivered to the grantee, absolute on way of delivery as a consummation of the its face, then the vesting of title becomes a transaction, but for inspection and approval question of law, and must date from the of another person; the court saying: "The delivery, and, since the grantee cannot act deed was not to be regarded as delivered as the agent of both himself and the grantor unless the settlement attempted was ap- for the purpose of a second delivery, title proved by Fulton, and, as it was not ap- must necessarily have passed upon the origproved by him, there was never in law any inal delivery. This rule is very clearly delivery, and the deed is without effect." stated by the New York court in Braman v. Steel v. Miller was a suit apparently found- Bingham, 26 N. Y. 492, where it was said: ed on fraud in the transaction, and the "The reason given for the rule excluding court held that the minds of the parties parol evidence of a conditional delivery to had never met on the question of a deliv- the grantee applies to all cases where the ery, and that no legal delivery ever took delivery is designed to give effect to the place. The evidence in the case appears, deed, in any event, without the further act however, to be directed at the specific ques- of the grantor." See also Hubbard v. Greetion of delivery alone. In Bunn v. Ste rart a ley, 84 Me. 340, 17 L. R. A. 511, 24 Atl. father appears to have executed deeds in 799. favor of certain of his children and grand- In this case, giving the respondent the children, with the intention of retaining most favorable construction that can posthem until such future time as he saw fit sibly be placed upon the evidence, it was the to deliver them in the distribution of his intention of the grantor, Beery, to vest tiestate, but later he became entangled in tle in his grantee, White, so as to enable divorce proceedings, and placed certain of the grantee to transfer a perfect title to the the deeds in controversy in the hands of two proposed corporation. Beery expected to of the grantees with instructions to hold | receive $5,000 worth of first-mortgage bonds

of the corporation as a balance of payment | thereby perfect the title. 9 Am. & Eng. of the purchase price of the property. Such Enc. Law, p. 155, and authorities cited; 13 bonds would have been valueless to Beery Cyc. Law & Proc. p. 565, and notes. unless the corporation could secure a good and perfect title to the property on which the mortgage bonds were to issue. Now, then, the question arises, Could the grantor, Beery, by warranty deed, absolute on its face, convey such a title to his grantee as would enable the grantee to pass a good and perfect title to the corporation, and at the same time attach such parol conditions to the deed upon its delivery as to preclude his grantee from conveying and transferring an equally good title to any other person or corporation? We must answer this question unqualifiedly in the negative. If the grantor, Beery, desired to limit the right of his grantee to transfer this property to any particular person or corporation, it was necessary to express that limitation upon the face of the instrument. For the foregoing reasons, we are clearly satisfied that the court erred in receiving and considering the evidence offered for the purpose of showing a failure to vest title in the grantee.

There is another significant fact in this case, and one which alone would prevent the plaintiff fom quieting his title under a quitclaim deed to the undivided one-half interest held by him, and that reason is found in the agreement of April 25th. It is there recited that the parties desire to enter into a "new and different agreement," and the agreement provides "that, whereas, I. R. Beery, party of the first part, is the equitable owner of the real property hereinafter described, while Willard White, party of the second part, holds the legal title thereto by virtue of a deed heretofore executed, now, therefore, . . . it is agreed: That said Willard White has this day become the owner, absolute, of the equitable as well as the legal title to a one-half interest, undivided, in the property hereinafter described." It readily appears from the provisions of this agreement that, whatever may have been the understandings and agreements between Beery and White at the time of the delivery of the deed, thereafter they adjusted those matters, entered into a new agreement, and Beery ratified and confirmed the delivery of the deed.-at least to the extent of an undivided one-half interest; and consequently, at the time of the execution of the quitclaim deed to Whitney, Beery had no right, title, or interest in and to such undivided interest in this property. Even though a valid delivery of the deed had not been made at the time of its execution, it is settled law that the grantor may thereafter ratify the wrongful taking of a deed after he has complete knowledge of the facts of the taking, and

It has been suggested that, since the appellant takes his title by quitclaim deed, he is for that reason chargeable with notice that the title of his grantor is doubtful, and that he is therefore not a bona fide purchaser. This appears to be conceded by counsel, but the same principle applies with equal force to the respondent, who takes title likewise by quitclaim deed. Under this line of authorities both parties would be equally chargeable with notice of defects in their grantor's title. 9 Am. & Eng. Enc. Law, 2d ed. p. 106, and notes; Leland v. Isenbeck, 1 Idaho, 469; Butte Hardware Co. v. Frank, 25 Mont. 344, 65 Pac. 4; Anderson v. Thunder Bay River Boom Co. 57 Mich. 216, 23 N. W. 776; Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717; Dickerson v. Colgrove, 100 U. S. 578, 25 L. ed. 618. It is doubtful, however, if such a rule could or ought to prevail under the recording laws of this state.

Respondent contends that, even though it be conceded that title passed from Beery to White, nevertheless, under the partnership agreement of September 7th between White and Whitney, White was unable to part with any title to anyone other than Whitney himself. This contention is based upon that clause in the contract of September 7th reading as follows: "It is further agreed that in the event the said White shall fail to raise sufficient funds to construct such dam, or fails to make such progress as shall be satisfactory to said Whitney within one year from the date hereof, the said White agrees to assign all his right, title, and interest in the same to said Whitney." It is conceded that White did not raise the necessary funds within the time prescribed, but it is equally true that the two, White and Whitney, continued in the possession of the property, and to some extent operated upon the property, for considerable time after the expiration of the year. White never assigned his interest to Whitney, nor does it appear that Whitney ever demanded that he do so, except to demand that White convey to him an interest acquired under the deed of January 25th. The appellant in this case only claims an undivided one-half interest in the property. He is the successor in interest of White. The respondent acquired a quitclaim deed from Beery to the entire property. He must therefore, so far at least as is disclosed by this record, own the other undivided one-half interest in the property. They are therefore on equal footing. A rule which in equity would preclude White from acquiring an interest in the property to the exclusion of his partner,

Whitney, would apply with equal force to tract of April 25, 1900, both the legal title Whitney. This is not an action by the to the entire property and equitable title to plaintiff to compel White, or his grantor with notice, to assign any interest acquired under the partnership agreement, and as to whether or not an agreement such as the one above quoted, stipulating for assign ment, could be made the basis upon which a court of equity would declare a forfeiture, is a matter on which we are not required in this case to express any opinion.

a

We find no reason for granting a rehearing in this case, and it will therefore be denied.

Stockslager, Ch. J., and Sullivan, J., concur.

Harry C. GRICE, Appt.,

v.

Jay WOODWORTH et al., Respts.

(........ Idaho........)

of Beery concerning the conditions imposed | ties to the action in order to give them any on White upon the delivery of the deed. binding effect. It is not contended by appellant that the statements which are claimed to have been made by White after receiving this deed were not true. It would appear from this record that if he made these statements he was, as matter of fact, only stating what had actually occurred. But the trouble is that the law will not permit parol testimony of such matters to defeat the vesting of title. If, therefore, the statements he made were true concerning such matters, they were not of such a character as to prejudice the respondent, or in any way to deceive him as to the facts or mislead him in his action or conduct. The respondent is presumed to have known, as a matter of law, that such conditions could not be attached to a deed upon its delivery to the grantee, and, having had full notice of the execution of the deed and of the agreements and contracts in relation thereto, he was, as a matter of law, neither deceived nor prejudiced by the statements or declarations so made. So long as he obtains his share as a partner in the fruits of the enterprise, he has no cause for complaint.

It should be further observed that it nowhere appears that any of these statements or declarations made by White were subsequent to the contract of April 25th. It would appear, however, from the record that they must have been made prior to that time.

It seems to us from a reading of the record before us that respondent must have understood that he and his associate, White, were acquiring title by virtue of the deed

*1. Where W. and W., husband and wife, enter into an oral contract for the sale of their homestead. and the purchaser takes possession thereof, and pays the purchase price, and makes valuable improvements thereon, all of which is done with the full knowledge and consent of the wife, the purchaser is entitled to a decree requir ing them to convey said premises to him.

2.

3.

of January 25th and contract of April 25th, A

or else he would not have continued to occupy and improve the property for a period of more than a year thereafter. They do not appear to have had any other contract or agreement whereby they could acquire the title to that property, as they had failed to make their payments under the contract of December 26th, and that contract had been superseded by the contract of April 25th. It does not seem reasonable that respondent would have spent a year's time and labor on this property unless he felt that he had title or legal and binding obligations whereby he, or he and his associate, could acquire title thereto.

Other questions were argued by respondent in his brief, and have also been presented in his petition for rehearing, but we do not think they properly arise upon this appeal, nor is the record in such a condition as to justify us in discussing them. sides, a legal determination of some of the points urged would necessitate other par

Be

The provisions of §§ 2921, 2922, 3040, and 3041 of the Revised Statutes of 1887 were enacted for the purpose of protecting the homesteads and other rights of married persons,-particularly the wives.and were not intended to operate as a shield to relieve against fraudulent transactions on their part.

Sections 3040, 3041, Rev. Stat. 1887, are, in their nature, rules of evidence, and are subject to the same legal principles as are conveyances falling under the statute of frauds, and the rules of equitable estoppel and waiver.

(Ailshie, J., dissents.)

(December 31, 1904.)

PPEAL by plaintiff from a judgment of the District Court for Latah County in favor of defendants in an action to compel specific performance of a contract to convey real estate. Reversed.

The facts are stated in the opinion. Messrs. R. V. Cozier and Stewart S. Denning, for appellant:

A party who, under a verbal contract, has purchased real estate, gone into possession, made valuable improvements there

*Headnotes by SULLIVAN, Ch. J.

NOTE. AS to estoppel of married women generally, see, in this series, Galbraith v. Lunsford, 1 L. K. A. 522, and note: Cook v. Walling, 2 L. R. A. 769, and note; Central Land Co. v. Laidley, 3 L. R. A. 826; Dobbin v. Cordiner,

4 L. R. A. 333; Long v. Crossan, 4 L. R. A. 783, and note; Wilder v. Wilder, 9 L. R. A. 97: Vansandt v. Wier, 32 L. R. A. 201; Mohler

v. Shank, 34 L. R. A. 161: Williamson v. Jones, 38 L. R. A. 694; National Granite Bank v. Tyndale, 51 L. R. A. 447; Hunt v. Reilly, 59 L. R. A. 206: McNeeley v. South Penn Oil Co. 62 L. R. A. 562: and cases in note to Webb v. John Hancock Mut. L. Ins. Co. 66 L. R. A. 636.