12 Nev. 361 | Nev. | 1877
By the Court,
On the fifth day of June, 1869, one A. Montminy conveyed to “Thomas Barnett & Bro., of the town of Beno, county of Washoe, and state of Nevada,” a certain lot in said town. Thereafter, on the eighth day of April, 1871, Thomas Barnett conveyed the same premises to J. G. Becker, and said Becker, on the tenth day of April, 1871, conveyed the property to B. andB. Lachman, the respondents in this case.
This is an action in ejectment commenced on the fifteenth day of April, 1876, by the appellant, Isaac Barnett, to recover the undivided one-half of said premises.
The cause was tried in the court below without a jury, and was there decided in favor of the respondents, upon the ground that the action was barred by the statute of limitations.
It was proven at the trial that Thomas Barnett had four brothers, but Isaac was the only one that ever lived at Beno. It is stated in the findings of fact that the business of the firm was, during its existence, conducted under the names of “Barnett Bro.” and “Barnett Bros.”
Was the plaintiff, upon these facts, vested with the legal title to an undivided one-lialf of said premises? This, in our opinion, is the material question presented in this case.
It will, of course, be admitted that the plaintiff- had an equitable interest and that, prior to the conveyance of Thomas Barnett, he could have instituted and maintained an equitable action to reform the deed by having his name inserted as one of the grantees therein in lieu of the term “Bro.” It will, also, be admitted that he could, after said sale, maintain a suit against Thomas Barnett to compel him to account for one-half of the proceeds derived from the sale of said property. But, in order to enable the plaintiff to support this action of ejectment, he must be clothed with the legal title; and hence the real question here is, as in Arthur v. Weston, “whether the partnership style is, as a matter of law, a good name of purchase, in a conveyance of real property, sufficient to pass the legal title to all the individuals of the firm.” (22 Mo. 378.)
A conveyance of real property is required to be in writing, and all the authorities hold that the grantee must be identified by name or by description, so as to be ascertained by the written instrument, or it is a nullity, in so far as it attempts or purports to convey the legal title.
It is said in Sheppard’s Touchstone, that if the grant be by deed the grantee must be sufficiently named, or at least set forth and distinguished by some circumstantial matter, and that he be so named or described as that he may be capable by that name whereby he is set forth. Begularly, it is requisite that the grantee be named by his names of
Appellant relies, among other authorities, upon the case of Hoffman v. Porter, where a deed was made to “Peter Hoffman & Son,” and it was admitted that Peter Hoffman was in partnership with his son John, and that the firm was known by the name of “Peter Hoffman & Son;” and Chief Justice Marshall decided that this circumstance was sufficient to designate the son intended in the deed. He took occasion, however, to state that the question was by no means free of doubt. In that case, the son John brought suit against the grantors in the deed to recover damages, in consequence of a defect in the title, under a covenant of warranty; and the justice of the case was so clearly with the plaintiff that the learned chief justice resolved the doubt in plaintiff’s favor, and gave validity to the conveyance. (2 Brock, 156.)
We do not think that the reasoning of that case, when considered in the light of the facts there presented and discussed, is sufficient to authorize us to declare that the deed here in question vested the legal title in Isaac Barnett.
In determining this question it must be distinctly understood that we are not called upon to decide whether it was the intention of the grantor to convey the property to Isaac Barnett; neither are we to decide what interpretation should
In Jackson v. Sisson, the patent was to “James Parker, William Potter, and Thomas Hathaway, for themselves and their associates, being a settlement of Friends on the west side of the Seneca lake; to have and to hold,” etc. Kent, J., in discussing the question as to the legal title, said: “There was no legal estate created by the patent but Avhat vested in the three patentees named. The description of the association * * * -was too vague and uncertain to constitute a competent grantee at laAv, or a cestui que use, Avhose estate the statute would transfer into possession. (Sanderson on Uses, 62, 128.) * * * But the grant from the state is not to the three patentees named and to their associates. It is to James Parker, William Potter, and Thomas Hathaway, for themselves and their associates, being the settlement aforesaid; and, therefore, from the Avorcls of the grant, as Avell as from the uncertainty of the description, it is evident the associates had only an interest in equity, and that Parker and the others were vested Avith the legal estate, as trustees for the association.” (2 Johns. Cases, 323.)
But the doctrine upon which this ease rests, and the principle upon which it must be decided, is more clearly stated in Arthur v. Weston, supra, which was, like this, an action of ejectment. The deed in that case Avas from one Holcomb to W. W. Phelps & Co., and in the lower court the plaintiff offered to prove that at the date of the conveyance from Holcomb to W. W. Phelps & Co., said firm was composed of Phelps, CoAvdry and Whitmore, but this evidence Avas excluded, and the court declared the law to be that the deed to W. W. Phelps & Co. operated to vest the legal title in W. W. Phelps only. The supreme court, in sustaining the ruling and decision of the lower court, said: “We repeat, the only question in the present case is Avhether the description the deed gives of Phelps, Whitmore & CoAvdry
This decision is followed in Gossett et al. v. Kent (19 Ark. 607), and Winter v. Stock (29 Cal. 407), and, in our opinion, it would be unsafe to depart from the rule therein announced.
It may be true, as was argued by appellant, that the term “Bro.” is not usually as uncertain as “Co.” It would seem to limit the inquiry as to which brother was meant, and if there was only one brother it might be said that there was no good reason why such brother should not take the legal title. But, in reality, the term “Bro.” maybe just as uncertain as “ Co.” It is not uncommon, we believe, after a firm name has been once established, for other persons than the original partners coming into the firm as partners to continue business without any change in the firm name. But, be this as it may, it is quite evident that it would be unsafe to hold that a purchaser of real estate is
It may have been, for aught that appears in the deed, that T. B. employed his brother Isaac as a clerk, and yet during all the time of the copartnership, the “Bro.” who was a member of the firm, may have lived at New York or Paris.
The law ought not, and it does not, sanction any rule which would be susceptible of so much doubt and uncertainty, independent of its evident tendency to encourage fraud and perjury. In any event it must be acknowledged that the doctrine contended for by appellant would surely tend to destroy the security of titles to real property, and ought not to be upheld.
Tbe judgment of tbe district court is affirmed.