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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 he 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 tlehe 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 roceeds to quote take effect on account of the first delivery, as a purt 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 langunge 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 cise, parol evidence is ad. escrow. And it is perfectly well settled by missible. But whether a deed, when de-al 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 conditionu that on that theory of the case the evidence delivery to the grantee applies to all cases admitted 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. cise, would amount in the end to such a Litt. 36a. 'Because then a bare averment, position. The leading authorities citrd 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. :39: Lee v. Richmond, 90 Iown, 695, 57 N. as an escrow upon certain conditions, etc.. | W. 613; Steel v. Hiller, 40 Iowa, 403; Bunn in this case, let the form of the words be V. Stuart, 183 Mo. 375, 81 S. W. 1091; Hast. what 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 botlı, in. prrol 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 fore. The deed having been delivered to the going language we do not understand the grantee, I think the prrol evidence that writer to mean that, where the question the delivery was conditional was properly of the delivery of the deed arises, pa rol tesexcluded." The authorities to the forego- timony may be introduced tending to show ing effect might be multiplied, of which t'e 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

was

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 indicite 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 yond 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 Moury 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

parol evidence admissible to show that he 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 dass 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 It has been suggested that, since the apand perfect title to the property on which pellant takes his title by quitclaim deed, he the mortgage bonds were to issue. Now, is for that reason chargeable with notice then, the question arises, Could the grantor, that the title of his grantor is doubtful, and Beery, by warranty deed, absolute on its that he is therefore not a bona fide purface, convey such a title to his grantee as chaser. This appears to be conceded by would enable the grantee to pass a good counsel, but the same principle applies with and perfect title to the corporation, and at equal force to the respondent, who takes the same time attach such parol conditions title likewise by quitclaim deed. Under to the deed upon its delivery as to preclude this line of authorities both parties would his grantee from conveying and transferring be equally chargeable with notice of defects an equally good title to any other person in their grantor's title. 9 Am. & Eng. Enc. or corporation? We must answer this ques- Law, 2d ed. p. 106, and notes; Leland v. tion unqualifiedly in the negative. If the Isenbeck, 1 Idaho, 469; Butte Hardware Co. grantor, Beery, desired to limit the right of v. Frank, 25 Mont. 344, 65 Pac. 4; Anderhis grantee to transfer this property to any son v. Thunder Bay River Boom Co. 57 particular person or corporation, it was nec. Mich. 216, 23 N. W. 776; Wetzstein v. Laressary to express that limitation upon the gey, 27 Mont. 212, 70 Pac. 717; Dickerson face of the instrument. For the foregoing v. Colgrove, 100 U. S. 578, 25 L. ed. 618. reasons, we are clearly satisfied that the It is doubtful, however, if such a rule could court erred in receiving and considering the or ought to prevail under the recording evidence offered for the purpose of showing laws of this state. a failure to vest title in the grantee.

Respondent contends that, even though it There is another significant fact in this be conceded that title passed from Beery to case, and one which alone would prevent the White, nevertheless, under the partner-hip plaintiff fom quieting his title under a quit- agreement of September 7th between White claim deed to the undivided one-half inter- and Whitney, White was unable to part est held by him, and that reason is found in with any title to anyone other than Whitthe agreement of April 25th. It is there ney himself. This contention is based upon recited that the parties desire to enter into that clause in the contract of Septemler 7th a "new and different agreement,” and the reading as follows: “It is further agreed agreement provides "that, whereas, I. R. that in the event the said White shall fail Beery, party of the first part, is the equita- to raise sufficient funds to construct such ble owner of the real property hereinafter dam, or fails to make such progress as shall described, while Willard White, party of be satisfactory to said Whitney within one the second part, holds the legal title there. year from the date her of, tie said White to by virtue of a deed heretofore executed, agrees to assign all his right, title, and in

now, therefore, ... it is agreed: terest in the same to said Whitney.” It is That said Willard White has this day become conceded that White did not raise the necthe owner, absolute, of the equitable as well essary funds within the time prescribed, but as the legal title to a one-half interest, undi- it is equally true that the two, White and vided, in the property hereinafter de Whitney, continued in the possession of the scribed.” It readily appears from the pro- property, and to some extent operated upon visions of this agreement that, whatever the property, for considerable time afmay have been the understandings and ter the expiration of the year. White never agreements between Beery and White at assigned his interest to Whitney, nor does it the time of the delivery of the deed, thereaf- appear that Whitney ever demanded that he ter they adjusted those matters, entered do so, except to demand that White conrey into a new agreement, and Beery ratified to him an interest acquired under the deed and confirmed the delivery of the deed.—at of January 25th. The appellant in this least to the extent of an undivided one-half case only claims an undivided one-half ininterest; and consequently, at the time of terest in the property. He is the successor the execution of the quitclaim de d to Whit. in interest of White. The respondent acney, Beery had no right, title, or interest quired a quitclaim deed from Beery to the in and to such undivided interest in this entire property. He must therefore, so far property. Even though a valid delivery of at least as is disclosed by this record, own the deed had not been made at the time of the other undivided one-half interest in the its execution, it is settled law that the property. They are therefore on equal foot. grantor may thereafter ratify the wrong- ing. A rule which in equity would preclude ful taking of a deed after he has complete White from acquiring an interest in the knowledge of the facts of the taking, and property to the exclusion of his partner,

concur.

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 The judgment of the lower court will be equity in this remaining half interest. reversed, and the cause remanded for fur. On the contrary, Whitney appears to have ther proceedings in harmony with the views received a deed from Beery for the entire herein expressed. So ordered. Costs award- tract of land on Mar 13, 1901. So far as ed to appellant.

the facts, therefore, disclosed by this record Stockslager, Ch. J., and Sullivan, J., lant, Dewey, now owns an undivided one;

are concerned, we conclude that the appel

half interest in the property as described A petition for rehearing having been filed, in the deed taken by him, and Whitney the the following response thereto was handed other one-half interest. down May 31, 1905:

It is suggested that White acquired all Respondent's petition for a rehearing in the interest he obtained in this property this case does not present anything new, or while sustaining a fiduciary relation toany question not originally considered by us, ward Whitney, his partner, under the though it again discusses some ques:ions agreement of September 7, 1899. This, we which we did not deem it necessary to pass think, is correct, and it is equally true with upon in the original opinion. The persist. reference to Whitney. But counsel conence with which counsel insists that we tends that this relation had been terminathave mistaken both the law and the equi- ed prior to the date on which Whitney acties in this case has led us to again exam. quired his deed. To this we cannot assent. ine the case at length, and, after so do. The contract of September 7th was made ing, we are unable to see wherein the judg. for a period of one year, and yet respondent ment of the trial court could be affirmed. repeatedly admits in his testimony that It must necessarily be true that the court they continued to do business in all recannot see either the law or the equities of spects as though it were still in force and a case in the same light in which they are effect from the date upon which it was ex• viewed by counsel for the losing party, and ecuted until the 1st of April, 1901, and that it may be, indeed, that sometimes the court all that then occurred looking to the term nimistakes them entirely. However, notwith- tion of the partnership relation consisted standing counsel's studied argument to the merely in respondent notifying White that contrary, we are convinced that this is he was going to declare the matter off. It not a case where we have mistaken either. takes more than a notice of this kind to dis

We are asked in the petition to announce solve a partnership and terminate a trust more definitely the position of the court as or fiduciary relation existing between partto what title White took under the deed of ners. If White acquired the entire title, January 25th. The only interest the appel. one half thereof would undoubteilly have lant claims, and for which he is litigating. inured to the benefit of his partner, Whitis an undivided one-half interest in this ney. If, on the other hand, he acquired property, and we have held that under the only a one-half interest in the property, record he is entitled to such interest. Under and in the meanwhile, and during the existthe deed of January 25th, the entire legal ence of that relation, and in pursuance title passed from Beery to White. Under thereof, his partner acquired the other half the contract of April 25th, Beery recognized interest, then such interest and equities that the entire legal title had passed from must offset each other, and the obligations him, and that all the interest he retained in resting upon them by reason of such rethe property was an equity. What that lation will be met in that respect. equity was is not recited, but we would infer Again, it is insisted by counsel that from the record that it consisted in a vend. White and his grantee are estopped to now or's lién for the unpaid purchase price. assert title to this property on account of By that contract Beery parted absolutely the declarations and statements made by with all of his equity in an undivided one White to Whitney and others after receiving half interest in this property. It therefore the deed from Beery. These statements follows that after the execution of the con were of the same character as the testimony

v.

by tlie

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 We find no reason for granting a rehear. statements which are claimed to have been ing in this case, and it will therefore be made by White after receiving this deed denied. were not true. It would appear from this record that if he made these statements he

Stockslager, Ch. J., and Sullivan, 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

Harry C. GRICE, A ppt., testimony oi such matters to defeat the vesting of title. If, therefore, the statements he made were true concerning such

Jay WOODWORTH et ., Respts. matters, they were not of such a character

(........ Idaho. .) as to prejudice the respondent, or in any way to deceive him as to the facts or mis

*1. Where W. and W., husband and lead him in his action or conduct. The

wife, enter into an oral contract for respondent is presumed to have known, the sale of their homestead. and the as a matter of law, that such conditions purchaser takes possession thereof, and pays could not be attached to a deed upon its

the purchase price, and makes valuable im

provernents thereon, all of which is done with delivery to the grantee, and, having had

the full knowledge and consent of the wife. full notice of the execution of the deed and

the purchaser is entitled to a decree requirof the agreements and contracts in reli

ing them to convey said premises to him. tion thereto, he was, as a matter of law, 2. The provisions of $$ 29921, 2922, 3040, neither deceived nor preju liced

and 3041 of

the Revised Statutes statements or declarations so made. So

of 1887 were enacted for the purpose of pro

tecting the homesteads and other rights of long as he obtains his share as a partner

married persons,-particularly the wives in the fruits of the enterprise, he has no

and were not intended to operate as a shield cause for complaint.

to relieve against fraudulent transactions on It should be further observed that it no- their part. where appears that any of these statements 3. Sections 3040, 3041, Rev. Stat. 1887, or declarations made by White were subse

are, in their nature, rules of evidence,

and are subject to the same legal principles quent to the contract of April 25th. It

as are conveyances falling under the statute would appear, however, from the record

of frauds, and the rules of equitable estoppel that they must have been made prior to and waiver. that time. It seems to us from a reading of the

(Ailshie, J., dissents.) record before us that respondent must have

(December 31, 1904.) understood that he and his associate, White, were acquiring title by virtue of the deed of January 25th and contract of April 25th, A

PPEAL by plaintiff from a judgment of

the District Court for Latuh County in or else he would not have continued to oc

fwor of defendants in an action to compel cupy and improve the property for a period specific performance of a contract to conof more than a year thereafter. They do vey real estate. Reversed. not appear to have had any other contract The facts are stated in the opinion. or agreement whereby they could acquire Messrs. R. V. Cozier and Stewart S. the title to that property, as they had failed Denning, for appellant: to make their payments under the con

A party who, under a verbal contract, tract of December 26th, and that contract has purchased real estate, gone into poshad been superseded by the contract of session, made valuable improvements thereApril 25th.

It does not seem reasonable that respondent would have spent a year's *Ileadnotes by SuLLIVAN, Ch. J. time and labor on this property unless he

NOTE.-As to estoppel of married women genfelt that he had title or legal and binding erally, see, in this series, Galbraith v. Lunsobligations whereby he, or he and his asso- ford, 1 L. R. A. 522, and note: Cook v. Walling, ciate, could acquire title thereto.

2 L. R. A. 769, and note; Central Land Co. v. Other questions were argued by respond- 4 L. R. A. 333; Long v. Crossan, 4 L. R. A.

Laidley, 3 L. R. A. 826; Dobbin v. Cordiner, ent in his brief, and have also been present- 783, and note: Wilder v. Wilder, . L. R. A. ed in his petition for rehearing, but we do 97 : Vansandt v. Wier, 32 L. R. A. 201 ; Mohler not think they properly arise upon this ap- v. Shank, 34 L. R. A. 161: Williamson v. Jones, peal, nor is the record in such a condition 38 L. R. A. 694; National Granite Bank v. as to justify us in discussing them. Be- Tyndale, 51 L. R. A. 447; Iunt v. Reilly, 59

L. R. A. 206 : McNeeley v. South Penn Oil Co. sides, a legal determination of some of the

62 L. R. A. 562: and cases in note to Webb v. points urged would necessitate other par. 'John Ilancock Mut. L. Ins. Co. 66 L. R. A. 636.

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