Exchange National Bank v. Fleming

65 P. 213 | Kan. | 1901

The opinion of the court was delivered by

Ellis, J.:

There is but one question in this case. If the oral authority given by Pollock to Fleming to write the name of a grantee in the blank left for that purpose when he should sell the land and the doing of such act by Fleming according to the letter and spirit of the power so conferred rendered such deed operative and valid as to Pollock, the holder of the. haked legal title, and as to Fleming, the equitable owner of the land, then title passed to Capen by the delivery of the deed to her. That an attachment creditor under our statute acquires by his writ no greater right in the property seized than the defendant in the attachment suit had at the time the writ was levied is not open to dispute. (N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 155, 12 Pac. 705.)

The fact that Capen paid for the land by releasing a preexisting debt against Fleming does not aid the cause of the bank, for it cannot be doubted that Fleming had a right to prefer his relatives over other creditors, if he did so in good faith. This the counsel for the bank does not deny. We think that at the time of its delivery to the interpleader the deed to her conveyed all the title theretofore held by Pollock and f Fleming, and that neither of them could be heard to -^question its effectiveness. (Inhabitants of South Berwick v. Huntress, 53 Me. 89, 87 Am. Dec. 535; Drury v. Foster, 2 Wall. [U. S.] 24, 17 L. Ed. 780; Bridgeport Bank v. N. York & N. Haven R. R. Co., 30 Conn. 274; Swartz v. Ballon, 47 Iowa, 188, 29 Am. Rep. 470; State v. Young, 23 Minn. 551; Foster v. Moore, 79 Hun [N. Y.] 472; Woolley v. Constant, 4 Johns. [N. Y.] 54, 4 Am. Dec. 246; Cribben et al. v. Deal, 21 Ore. 211, 27 Pac. 1046; McCleary v. Wakefield, 76 Iowa, 529, 41 N. W. 210, 2 L. R. A. 529; The State v. Mathews, 44 Kan. 596, 25 Pac. 36, 10 L. R. A. 308; Chapman v. Veach, 32 id. 167, 4 Pac. 100; Field v. Stagg, 52 Mo. 534, 14 Am. Rep. 435; Duncan v. Hodges, 4 McCord [S. C.] 239, 17 Am. Dec. 734; Van Elta v. Evenson, impleaded, etc., 28 Wis. 33, 9 Am. Rep. 486.)

In this case the deed was complete before execution, except that the name of the grantee was not inserted therein. The question as to whether a deed would be valid if an owner of property should sign and acknowledge a blank form and orally authorize another to fill up all the blanks, and thereby convert a bare and meaningless paper into something purporting to be a conveyance of land, is not before us for adjudication. It is not claimed in this cause that the name of the interpleader was placed in said deed in violation of the desire and command of the grantor, for which reason we are not called upon to determine whether a failure to follow and carry out the will and direction of the maker in that respect would render the writing, when apparently complete and regular, void as an instrument of conveyance. Inasmuch as when Mrs., Capen received it she had no knowledge that her name had been inserted after it had been signed and acknowledged by Pollock, it is not necessary for us to inquire whether knowledge of 'such fact would have impaired her rights.

We are clear that under the facts in this case her name was lawfully entered in the proper blank in the deed, and that alone is the proposition here decided. It is urged by counsel for the bank that in the early case of Ayres v. Probasco, 14 Kan. 176, this court laid down a rule with which the one here followed conflicts. It is true that some of the language contained in the majority opinion in that case is contrary to the views herein expressed, but it will be observed that upon rehearing, at page 199, Mr. Justice Valentine, speaking for the majority of the court, said :

“It -was not really necessary in this case that we should have decided said fifth proposition of the syllabus, and hence what is said therein, and the corresponding portion of the original opinion, may be treated merely as dictum.”

The fifth paragraph of the syllabus above referred to contained all of the law laid down in that case which counsel contend is applicable to this. From that Mr. Justice Brewer dissented, and the other members of the court subsequently characterized the paragraph as dictum. Upon its facts, the case of Ayers v. Probasco can be easily distinguished from the one now under consideration.

The other errors complained of are not regarded as of sufficient import to justify a reversal of the case. The judgment of the court below will be affirmed.

Johnston, Cunningham, Greene, JJ., concurring.