214 P. 219 | Idaho | 1923
This is an action brought by respondents through their guardian ad litem to quiet their title to 80 acres of land. Appellant, in addition to his answer, filed a cross-complaint in which he seeks to quiet his title to the same land. Respondent and Rose B. Gardiner were husband and wife. They were endeavoring to divide the community property. Respondents are their minor children. Mary O’Roke is the mother of Rose B. Gardiner and grandmother of respondents. Ou October 17, 1918, Mary O’Roke executed and acknowledged a warranty deed to the 80 acres in question to appellant, reciting a consideration of $855, and deposited the same in escrow with the Boise City National Bank in an envelope on the outside of which was indorsed the following escrow agreement, to wit:
“ESCROW AGREEMENT.
“Boise City National Bank.
“This envelope contains a deed from Mary O’Roke, a widow, grantor to James T. Gardiner and Rose B. Gardiner, grantees. It is to be delivered to the grantees upon two conditions which are as follows:
“First: That James T. Gardiner on or before March 1, 1919 deposit to the credit of Mary O’Roke in your bank the sum of $855.00.
“Secondly: That after said deposit is made said James T. Gardiner and Rose B. Gardiner, shall jointly request the delivery of said deed to them and shall receipt you for the same.
“If said deposit is made as above provided then you are to hold said deed until the delivery thereof is jointly requested by the grantees.
“Bated this 17th day of Oct. 1918.
“MARY O’ROKE.”
Appellant complied with the first condition of the escrow agreement by paying Mrs. O’Roke the $855 on November 4,
The fact that appellant did not obtain actual possession of the deed and record it, before respondents’ deed was recorded, does not invalidate the conveyance to him. -
“See. 5424. Every conveyance of real property other than a lease for term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded. ’ ’ (G. S., sec. 5424.)
The only consideration for respondents’ deed was love and affection. While this is a good consideration, it is not a valuable consideration within the meaning of the statute.
The fact that the escrow agreement was signed only by Mary O’Roke does not invalidate it. A written contract, signed by one party only, binds the other if he accepts the writing. (McPherson v. Fargo, 10 S. D. 611, 66 Am. St. 723, 74 N. W. 1057; Vassault v. Edwards, 43 Cal. 458; Sellers v. Greer, 172 Ill. 549, 50 N. E. 246, 40 L. R. A. 589; Vogel v. Pekoc, 157 Ill. 339, 42 N. E. 386, 30 L. R. A. 491; 1 Williston on Contracts, sec. 90, p. 158, note 57.) Appellant by his acts accepted the contract and it became a valid written contract between himself and Mrs. O’Roke.
Where a deed is delivered in escrow with an agreement that it shall take effect upon the fulfilment of certain conditions by the grantee it takes effect when these conditions are fulfilled, even though actual delivery has not been made to the grantee. (Gammon v. Bunnell, 22 Utah, 421, 64 Pac. 958; Davis v. Clark, 58 Kan. 100, 48 Pac. 563; Guild v. Althouse, 71 Kan. 604, 81 Pac. 172; Cannon v. Handley, 72 Cal. 133, 13 Pac. 315; Bishop v. Dodge, 196 Mich. 231, 162 N. W. 1002; Chase v. Gates, 33 Me. 363; 1 Devlin on Real Estate, see. 331, p. 588; 2 Tiffany on Real Property, sec. 462, p. 1778.) C. S., sec. 5381, relied upon by respondents, relates to a contract of sale and not to a deed deposited in escrow. If the conditions of the escrow agreement governing the taking effect of the deed from Rose B. Gardiner to appellant were fulfilled, the deed to appellant became effective.
Respondents contend that the second condition of the contract was never met because Mrs. Gardiner did not join appellant in a joint request to the bank to deliver the deed.
This brings us to the most important and closest question in the ease. Over appellant’s objection respondents were permitted to introduce the testimony of Mrs. O’Roke to the effect that it was orally agreed between her and appellant, at the time the deed was placed in escrow, that the following additional conditions should be fulfilled before the deed was to take effect, viz., that he was to pay all back taxes and clear all indebtedness on the place, that a division of the community property was to be made between Mrs. Gardiner and the appellant which would be satisfactory to Mrs. O’Roke, that appellant was to procure a patent for certain land which was going to Mrs. Gardiner in the settlement, and that a division of property was to be agreed upon between appellant and Mrs. Gardiner which would be satisfactory to Mrs. O’Roke. She testified that these other conditions were not fulfilled, and that the division of property, which was agreed upon between Mrs. Gardiner and appellant, was not satisfactory to her. Appellant objected to this evidence on the ground that it varied or added to the written agreement. The general rule is well established that, when a contract is reduced to writing, it constitutes the final agreement of the parties as to its subject matter, and prior or contemporaneous oral agreements or statements varying or adding to its terms are not admissible. (Beebe v. Pioneer Bank& Trust Co., 34 Ida. 385, 201 Pac. 717; Jacobs v. Shenon, 3 Ida. 274, 29 Pac. 44; Stein v. Fogarty, 4 Ida. 702, 43 Pac. 681; First National Bank v. Bews, 5 Ida. 678, 51 Pac. 777; Newmyer v. Roush, 21 Ida. 106, Ann. Cas. 1913D, 433, 120 Pac. 464; 10 R. C. L., subject “Evidence,” secs. 208-214, and notes.) Respondents contend, however, that this rule does not apply, that the evidence was admissible under the rule which permits evidence of an oral agree
If that evidence is stricken from the record, it is perfectly clear that appellant fulfilled the conditions of the written escrow agreement and thereupon the deed took effect and he was entitled to delivery.
The judgment is reversed and the cause remanded to the district court, with orders to enter judgment quieting title in appellant as against respondents and each of them. Costs are awarded to appellant.