Comer v. Baldwin

16 Minn. 172 | Minn. | 1870

By the Court

McMillan, J.

This action was tried by a referee. Upon the trial, and after the plaintiff had introduced all his testimony and rested his case, the defendant by his attorney moved to dismiss the action upon the grounds:

1. That the complaint does not state facts sufficient to constitute a cause of action.

2d. That the plaintiff upon his testimony is not entitled to judgment, and the defendant upon such testimony is entitled to a judgment of dismissal.

The motion was granted and judgment of dismissal ordered by the referee in his report. The plaintiff after making and settling a case, moved in the district court to set aside the report of the referee and for a new trial, on the ground that the report and decision is not justified by the evidence and is contrary to law. The latter motion was denied and the plaintiff appealed to this court.. The important and vital question in the case is whether the deed in question was or was not delivered by Baldwin to Comer. As the plaintiff’s testimony upon this point as given upon the trial before the referee is before us, it will be more satisfactory to consider the question upon the sufficiency of the proofs offered on the trial, assuming the complaint to be good, as if these are insufficient an amendment of the complaint would not be material. To constitute a delivery of a deed effectual in law to pass the title to real estate, not only must the deed be delivered by the grantor, but it must be accepced by the grantee. Parker and wife vs. Parker and wife, 1 Gray 411; Fonda vs. Sage, 46 Barb. 124.

A careful examination of all the testimony in the case fully satisfies us that there was no delivery of the deed from Baldwin to Comer, sufficient to pass any title to or interest in the land. The delivery of the deed, the payment of 11,000 of the purchase money, and the delivery of the notes and mortgage for the balance according to the terms of the verbal agreement, were in legal effect parts of one transaction, and in the absence of qualifying circumstances each essential to and conditioned upon the other. We think it is apparent that at the time Baldwin handed the deed and other papers to Comer, neither of the parties understood it as a delivery of the deed which would pass the title. If it was not handed oimr with the express or positive understanding of both parties that it was for the purpose of enabling Comer the grantee to examine the title and the deed, that at least was Comer’s intention in receiving it; for both Comer and Baldwin immediately went together into Mr. Smith’s room; and Comer handing the papers to Mr. Smith, said he was going down to the bank to pay Mr. Baldwin $1,000, and he wanted to see if the title was all right. Baldwin as certainly delivered it upon condition that Comer should make the cash payment in hand, and deliver the securities for the balance. In either case there was no complete delivery, for after examination the title was not satisfactory to Comer, nor did he pay any of the purchase money, or deliver any of the securities, but the deed was changed so as to embrace Mrs. Baldwin as a party grantor, and her interest, and handed back to Baldwin under a verbal understanding that he would send the deed to his wife for execution by her, and return it to Comer when so executed. The transaction was not closed; no title vested in the plaintiff Comer, and the deed has never since been delivered or returned to him. It is the case, therefore, of an unexecuted oral agreement for the sale and purchase of land, which it is scarcely necessary to be observed cannot be enforced, nor would the payment of the entire purchase money, in such case, give the grantee any right which would be enforced in a court of chancery.

The complaint states no facts which would entitle the plaintiff to enforce the specific performance of the verbal agreement, nor does the testimony disclose any such facts.

But it is claimed by the plaintiff that although the delivery of the deed may not have been sufficient to pass the title to the land, yet it was sufficient to constitute a contract in writing, the specific performance of ivliich the plaintiff is entitled to enforce. This position cannot bo sustained; for, to render a written contract to convey land operative, it is just as essential that the contract, or memorandum of the contract, required by the Statute of Frauds be delivered, as that a deed be delivered in order to convey the title to the land. And in this case if the instrument was delivered at all, it was as a conveyance, not otherwise. Parker and wife vs. Parker and wife, 1 Gray 411; Merriam vs. Leonard, 6 Cush. 151.

It is unnecessary to consider the question of pleading)^ presented, as the point we have determined fully disposes of the case on its merits. The action was properly dismissed by the referee, and the court was right in denying the motion to set aside the report and for a new trial.

The order appealed from is therefore affirmed.