111 Neb. 171 | Neb. | 1923
The appellee, who was the plaintiff in the district coui*t, declared on a covenant of warranty against incumbrances, and obtained judgment in full for the amount of his claim. The appellants bring the case here for review, asserting that the judgment of the court below (the cause was tried .without jury) was not sustained by the evidence, was contrary to the evidence, and was contrary to law.
About the 29th day of December, 1919, appellants, who were defendants in the lower court, traded properties with one Barnhardt and conveyed to him a certain acreage by warranty deed in blank. It was agreed that Barnhardt was to pay the special city taxes on the property thus conveyed to him, but by inadvertence this agreement was omitted from the deed. In March following the said Barnhardt, representing himself to be an agent for the sale of said acreage, sold it upon a day’s negotiation to the appellee, entering the latter’s name as grantee in the described blank deed and delivering said deed to close the deal. The appellee testified with apparent candor and directness that he had no knowledge of any oral agreements as to taxes or otherwise between the appellants and Barnhardt; that he did not know that he was taking title by a deed made in blank; that he did not notice the date of the deed; and that he did not inquire as to who the grantors were. It appears that he depended on the abstract, except as to tax conditions, which at that time (shortly after the Omaha courthouse fire) were not being certified by the abstractors. He said that he had said abstract examined by his attorney, and upon favorable opinion paid his money and took his deed, observing only that it was a deed of warranty. There were special assessments for grading against the property.
In connection with the foregoing statement of facts, it
An interesting question is whether' or not the deed itself, antedating the sale by at least two months, was notice to appellee requiring him to ascertain from the appellants that Barnhardt had their authority to fill in his name as grantee, or to assume the burden of the reservation as to taxes above referred to. And that comes down, in analysis, to whether or not such a deed would convey any title. This question only becomes material upon the hypothesis that the appellants authorized Barnhardt to insert only his own name in the blank space left for the grantee, and that the court so found. The discussion of the parties is largely upon this point.
The English doctrine was, and is, that a deed of the kind which we are considering does not become the valid and subsisting deed of the grantor till the name of the grantee is inserted, and that an agent cannot insert the grantee’s name in the absence of the grantor unless thereunto authorized in writing. Some of the states have applied this rule in cases where fraud is involved, as Alabama, Georgia, Texas, Illinois, and California. Upton v. Archer, 41 Cal. 85, and Barden v. Grace, 167 Ala. 453, are cases in point.
. Many states, less inclined to' the English doctrine, hold that where the name of the grantee is written in by a person who has neither written nor oral authority, so' to do, or where the deed is completed by such person in a manner contrary to the directions of the grantor, the deed will be held invalid as to any person advised as to the facts. Thummel v. Holden, 149 Mo. 677; Westlake v. Dunn, 184 Mass. 260; Whitaker v. Miller, 83 Ill. 381. Yet it is doubtful that the
Measured by either provision of the rule, it is plain that appellants are in no position to escape the judgment entered by the district court. Construing the evidence favorably to the appellee, because of the equities involved, we incline to the opinion, as the trial court doubtless did, that said appellee was an innocent purchaser. But, if the contrary be true, it remains undisputed that he gave full value for the land, and the appellants are in no better position so far as the present controversy is concerned. For, even if the deed was voidable, they did not offer to return the purchase money paid by the appellee, or otherwise attempt to void the deed.
Because of this and because of the views before expressed in this opinion, the judgment appealed from is
Affirmed.