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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. Counsel for respondent contend that, while Bingham. 26 N. Y. 492, the court of ap- there was a manual delivery of the deed, peals said: "The reason given for the rule there was no intention to pass title, and excluding parol evidence of a conditional that on that theory of the case the evidence delivery to the grantee applies to all cases admitted was proper and competent to where the delivery is designed to give effect show such fact. While it is not directly to the deed, in any event, without the fur- contended that the grantee can hold a deed ther act of the grantor. 'When the words in escrow from his grantor, the argument are contrary to the act, which is the de- of counsel, as applied to the facts of this livery, the words are of none effect.' Co. case, would amount in the end to such a Litt. 36a. 'Because then a bare averment, position. The leading authorities cited by without any writing, would make void every respondent in support of this position are deed.' Williams v. Greene, Cro. Eliz. pt. 9 Am. & Eng. Enc. Law, 2d ed. p. 154; 2, p. 884. 'If I seal my deed and deliver it Black v. Sharkey, 104 Cal. 279, 37 Pac. to the party himself, to whom it is made. 939; Lee v. Richmond, 90 Iowa, 695, 57 N. as an escrow upon certain conditions, etc.. W. 613; Steel v. Miller, 40 Iowa, 403; Bunn in this case, let the form of the words be v. Stuart, 183 Mo. 375, 81 S. W. 1091; Hastwhat it will, the delivery is absolute, and ings v. Vaughn, 5 Cal. 315. In 9 Am. & the deed shall take effect as his deed pres- Eng. Enc. Law, 2d ed. p. 154, under the ently. Shep. Touch. 59: Wyhddon's Case, heading of "What is Delivery-(c) A Cro. Eliz. pt. 2, p. 520; Cruise's Dig. Question of Intention," the author says: title 33, Deeds, chap. 2, § 80. If a delivery "The real test of delivery is this: Did the to the grantee can be made subject to one grantor, by his acts or words, or both, inparol condition, I see no ground of principle tend to devest himself of title? If so, which can exclude any parol condition. the deed is delivered." By the foreThe deed having been delivered to the going language we do not understand the grantee, I think the parol evidence that writer to mean that, where the question the delivery was conditional was properly of the delivery of the deed arises, parol tesexcluded." The authorities to the forego-timony may be introduced tending to show ing effect might be multiplied, hich the the intention of the parties to such an exfollowing appear to be some of the leading tent as to control the vesting of title concases: Blewitt v. Boorum, 142 N. Y. 357, trary to the express written language of the 40 Am. St. Rep. 600, 37 N. E. 120; Darling deed itself, or, in other words, attach

them until he called for their return, but the grantees, contrary to his instructions, placed them of record, and the supreme court of Missouri held upon that state of facts that no legal delivery ever took place.

conditions to the deed; and, indeed the authorities cited by the author in support of the text do not go to such an extent. Counsel quote at length from Black v. Sharkey, 104 Cal. 279, 37 Pac. 939, where the court uses language that would indicate the view that evidence might be introduced to prove that the parties did not intend the deed should take effect according to its terms; but it should be observed that in that case the only question under consideration, and the only one decided, was whether or not parol evidence might be introduced to show that the deed which had been duly executed and was found in the possession of the grintee had ever been in fact delivered. The opinion in that case is by the court commissioners, and makes no reference to the former case of Mowry v. Heney, 86 Cal. 471, 25 Pac. 17. The latter opinion was by the court, and it was there expressly held that, "when an absolute deed has been delivered to the grantee, the title becomes vested free from any conditions, and its operation cannot be defeated by parol proof of an intention on the part of the grantor, known to the grantee, that it should not take effect except in event of the grantor's death; nor is parol evidence admissible to show that the delivery of the deed to the grantee was subject to any condition not expressed therein." We cannot, therefore, view the BlackSharkey Case as in any way overruling or modifying Mowry v. Heney. Hastings v. Vaughn was to the same effect as the latter case. In Lee v. Richmond the Iowa court held that there had been no delivery of the deed, and that the instrument had reached the hands of the grantee, not by way of delivery as a consummation of the transaction, but for inspection and approval of another person; the court saying: "The deed was not to be regarded as delivered unless the settlement attempted was approved by Fulton, and, as it was not approved by him, there was never in law any delivery, and the deed is without effect." Steel v. Miller was a suit apparently founded on fraud in the transaction, and the court held that the minds of the parties 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 grandchildren, with the intention of retaining them until such future time as he saw fit to deliver them in the distribution of his estate, but later he became entangled in divorce proceedings, and placed certain of the deeds in controversy in the hands of two of the grantees with instructions to hold |

The extent to which the intention of the parties enters into the act of delivery of a deed is very fairly stated by the author in 13 Cyc. Law & Proc. p. 561, and the authorities cited in support thereof. It is bevond controversy that the evidence of delivery must come from without the deed. In other words, a deed never shows upon its face nor by the terms thereof a delivery, and parol evidence thereof must necessarily be admitted when the question of delivery arises. And it will, perhaps, often be difficult to accurately determine the exact extent to which the intention of the parties is admissible as to the ultimate result of devesting the grantor of title; but such testimony should never be considered by the court to the extent of governing and controlling the express terms of the instrument, where it is clear that a delivery has been made, even though the parties have mistakenly supposed the legal effect would be different. Of course, such evidence would be competent if it should be shown that under no circumstances, and in no event, and under no conditions was the title ever to pass from the grantor, because such a showing would disprove a legal delivery. It would show a failure to consummate the contract and sale of the property. But where it is the intention of the parties for the title to pass upon any contingency or in any event from the grantor to the grantee, and the deed is delivered to the grantee, absolute on its face, then the vesting of title becomes a question of law, and must date from the delivery, and, since the grantee cannot act as the agent of both himself and the grantor for the purpose of a second delivery, title must necessarily have passed upon the original delivery. This rule is very clearly stated by the New York court in Braman v. Bingham, 26 N. Y. 492, where it was said: "The reason given for the rule excluding parol evidence of a conditional delivery to

In this case, giving the respondent the most favorable construction that can possibly be placed upon the evidence, it was the intention of the grantor, Beery, to vest title in his grantee, White, so as to enable the grantee to transfer a perfect title to the proposed corporation. Beery expected to 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.

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.

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 wrong ful taking of a deed after he has complete knowledge of the facts of the taking, and

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 ac quired 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 an undivided one-half interest therein was with notice, to assign any interest acquired vested in White, and that by the terms of under the partnership agreement, and as that agreement White recognized a remainto whether or not an agreement such as the ing equity in Beery to the other undivided one above quoted, stipulating for assign half interest in this property, and for that ment, could be made the basis upon which equity agreed to pay the sum of $750 on a court of equity would declare a forfeiture, or before January 1, 1901. White does not is a matter on which we are not required appear to have paid this sum, or to have in this case to express any opinion. received any further deed from Beery to his equity in this remaining half interest. On the contrary, Whitney appears to have received a deed from Beery for the entire tract of land on May 13, 1901. So far as the facts, therefore, disclosed by this record are concerned, we conclude that the appellant, Dewey, now owns an undivided onehalf interest in the property as described in the deed taken by him, and Whitney the other one-half interest.

The judgment of the lower court will be reversed, and the cause remanded for further proceedings in harmony with the views herein expressed. So ordered. Costs awarded to appellant.

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

concur.

A petition for rehearing having been filed, the following response thereto was handed down May 31, 1905:

Respondent's petition for a rehearing in this case does not present anything new, or any question not originally considered by us, though it again discusses some questions which we did not deem it necessary to pass upon in the original opinion. The persistence with which counsel insists that we have mistaken both the law and the equities in this case has led us to again examine the case at length, and, after so doing, we are unable to see wherein the judgment of the trial court could be affirmed. It must necessarily be true that the court cannot see either the law or the equities of a case in the same light in which they are viewed by counsel for the losing party, and it may be, indeed, that sometimes the court mistakes them entirely. However, notwithstanding counsel's studied argument to the contrary, we are convinced that this is not a case where we have mistaken either.

We are asked in the petition to announce more definitely the position of the court as to what title White took under the deed of January 25th. The only interest the appellant claims, and for which he is litigating. is an undivided one-half interest in this property, and we have held that under the record he is entitled to such interest. Under the deed of January 25th, the entire legal title passed from Beery to White. Under the contract of April 25th, Beery recognized that the entire legal title had passed from him, and that all the interest he retained in the property was an equity. What that equity was is not recited, but we would infer from the record that it consisted in a vendor's lien for the unpaid purchase price. By that contract Beery parted absolutely with all of his equity in an undivided onehalf interest in this property. It therefore follows that after the execution of the con

It is suggested that White acquired all the interest he obtained in this property while sustaining a fiduciary relation toward Whitney, his partner, under the agreement of September 7, 1899. This, we think, is correct, and it is equally true with reference to Whitney. But counsel contends that this relation had been terminated prior to the date on which Whitney acquired his deed. To this we cannot assent. The contract of September 7th was made for a period of one year, and yet respondent repeatedly admits in his testimony that they continued to do business in all respects as though it were still in force and effect from the date upon which it was executed until the 1st of April, 1901, and that all that then occurred looking to the term`nɩtion of the partnership relation consisted merely in respondent notifying White that he was going to declare the matter off. It takes more than a notice of this kind to dissolve a partnership and terminate a trust or fiduciary relation existing between partners. If White acquired the entire title, one half thereof would undoubtedly have inured to the benefit of his partner, Whitney. If, on the other hand, he acquired only a one-half interest in the property, and in the meanwhile, and during the existence of that relation, and in pursuance thereof, his partner acquired the other half interest, then such interest and equities must offset each other, and the obligations resting upon them by reason of such relation will be met in that respect.

Again, it is insisted by counsel that White and his grantee are estopped to now assert title to this property on account of the declarations and statements made by White to Whitney and others after receiving the deed from Beery. These statements were of the same character as the testimony

of Beery concerning the conditions imposed | ties to the action in order to give them any on White upon the delivery of the deed. 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

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

of January 25th and contract of April 25th,

was, as a matter of fact, only stating J., concur. 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.

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.

binding effect.

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

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. Besides, a legal determination of some of the points urged would necessitate other par69 L. R. A.

Stockslager, Ch. J., and Sullivan,

Harry C. GRICE, Appt.,

v.

Jay WOODWORTH et al., Respts.

(........ Idaho......

.)

*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 requiring them to convey said premises to him.

2.

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.

3. 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.)

A

PPEAL by plaintiff from a judgment of the District Court for Latah County in specific performance of a contract to confavor of defendants in an action to compel vey 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, session, made valuable improvements therehas purchased real estate, gone into pos

*Headnotes by SULLIVAN, Ch. J.

erally, see, in this series, Galbraith v. LunsNOTE. AS to estoppel of married women genford, 1 L. R. 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, 783, and note; Wilder v. Wilder, 9 L. R. A. 4 L. R. A. 333; Long v. Crossan, 4 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.

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