137 N.W. 451 | N.D. | 1912
(after stating the facts as above). The first point to be considered in this case is whether the plaintiffs complied with the resolution of May 24, and furnished to the board, not later than June 27, 1911, “abstracts of title showing the property to be free from encumbrances of any kind or nature.” This question we are compelled to determine in the negative. The abstracts which were presented disclose, and, as far as we can learn, still disclose that blocks 2, 3, 4, 5, 6, and 7 of Warrendale Addition was a part of the S. W. of the N. W. J of sec. 25, township 155, Kange 83, and that on the 21st day of June, 1907, the owners thereof had caused the same to be surveyed and platted as Warrendale Addition to the city of Minot, North Dakota, and by a certificate of ownership and dedication executed and acknowledged on said day had conveyed to the public and for public use all the streets, avenues, and alleys so made, and said dedication had, insofar as the abstract revealed, never been revoked, canceled, or set aside, nor had said streets, avenues,' or alleys ever been vacated. This fact was established both by the abstracts themselves and by the parol evidence. The abstract also showed that on the 5th day of August, 1909, the Great Northern Oil, Gas, & Pipe Line Company executed and acknowledged their mortgage for $26,000 to E. A. Parsons, B,. A. Barron, and W. B. Parker, on all of its assets, schedule B of said assets covering certain unrecorded leases for oil and gas purposes on some of the lots included in said tract, and that said mortgage was unsatisfied and still of record on June 27, 1911. The abstract also disclosed that the title to the W. of the N. W. ¿ of the S. W. and the N. of the W. of the S. W. J of the S. W. of said sec. 25 was based upon the foreclosure of a certain mortgage, but failed to show upon said abstract a copy of the notice of foreclosure sale, affidavit of publication, or any memorandum relating to such notice or affidavit, nor any copy or memorandum of any decree of foreclosure in any action brought for such purpose. The abstract also disclosed a contract for deed of such premises executed by the Bank of Minot on the 21st day of April, 1903, to the North Dakota Title, Insurance, & Trust Company, and a contract
These abstracts, disclosing the facts such as we have mentioned, can hardly be said to have been merchantable abstracts, or to have shown the property to be “free from encumbrances of any kind or nature.” The resolution called for what is commonly called a marketable title, and such was not furnished. 1 Warvelle, Vendors, § 299; Roberts v. Bassett, 105 Mass. 409; Davidson v. Van Pelt, 15 Wis. 341; Jenkins v. Fahey, 73 N. Y. 355; Smith v. Taylor, 82 Cal. 534, 23 Pac. 217; Horn v. Butler, 39 Minn. 515, 40 N. W. 833; Parker v. Porter, 11 Ill. App. 602; Taylor v. Williams, 2 Colo. App. 559, 31 Pac. 504.
It may be that on the trial many of these defects were cured by the production of deeds, quitclaims, certificates, etc. The question to be determined, however, was not what was the actual condition of the title at the time the abstracts were furnished, nor what was the condition of the title at the time of the trial, but what was the condition of the title as disclosed by the abstracts on June 27, 1911. Horn v. Butler, 39 Minn. 515, 40 N. W. 833; Parker v. Porter, 11 Ill. App. 602; Taylor v. Williams, 2 Colo. App. 559, 31 Pac. 504; Smith v. Taylor, 82 Cal. 534, 23 Pac. 217. There is no pretense, however, of showing that even on the trial the defect which was undoubtedly created by the dedication of the streets had been remedied, and that such dedication was a defect is beyond controversy. 2 Warvelle, Vendors, 972; Barlow v. McKinley, 24 Iowa, 69; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731; Prescott v. Trueman, 4 Mass. 627, 3 Am. Dec. 246; Turner v. Reynolds, 81 Cal. 214, 22 Pac. 546; Koshland v. Spring, 116 Cal. 689, 48 Pac. 58; Maupin, Marketable Title, 2d ed. p. 775, and note, 16. That the abstract was not general merchantable is also further established by the following authorities: Clark v. Fisher, 54 Kan. 403, 38 Pac. 493; Fritz v. Pusey, 31 Minn. 368, 18 N. W. 94; Edwards v. Clark, 83 Mich. 246, 10 L.R.A. 659, 47 N. W. 112; Roberts v. McFadden, 32 Tex. Civ. App. 47, 74 S. W. 105; Stambaugh v. Smith, 23 Ohio St. 584, 15 Mor. Min. Rep. 82; Spurr v. Andrew, 6 Allen, 420; Clark v. Zeigler, 79 Ala. 346; Gates v. Parmly, 93 Wis. 294, 66 N. W.
Nor is there anything in the proposition advanced by the plaintiff Youngman, that a binding contract had been made with the board, and that the board could not afterwards rescind it. A donation by the owner is merely an offer, and, until the municipality or board accepts it, it cannot be bound. Littler v. Lincoln, 106 Ill. 353. Proof of an acceptance is necessary. 9 Am. & Eng. Enc. Law, 43; 13 Cyc. 461; State v. Trask, 6 Vt. 355, 27 Am. Dec. 563; State v. Bradbury, 40 Me. 154; Jordan v. Otis, 37 Barb. 50; Rhodes v. Brightwood, 145 Ind. 21, 27, 43 N. E. 942; Elliott, Roads & Streets, § 114; 9 Am. & Eng. Enc. Law, 2d ed. 21; Flack v. Green Island, 122 N. Y. 107, 25 N. E. 267; Gray v. Nelson, 77 Iowa, 63, 41 N. W. 566; Scott v. Berkshire County Sav. Bank, 140 Mass. 157, 2 N. E. 925. The gift or dedication was never really accepted. In place of an acceptance a counter proposition was made, to the effect that the site would be accepted provided that, within the time specified, the terms of the resolution in regard to the abstract, etc., was complied with. Sec. 5306, Revised Codes of 1905; Page, Contr. § 46; Corcoran v. White, 117 Ill. 118, 57 Am. Rep. 858, 7 N. E. 525; 9 Am. & Eng. Enc. Law, 51. The plaintiff has not shown that he met the requirements of this conditional acceptance or counter proposition. Page, Contr. § 39; Stinson v. Dousman, 20 How. 461, 15 L. ed. 966; Page, Contr. § 1159; Vorwerk v. Nolte, — Cal. —, 24 Pac. 840; Slater v. Emerson, 19 How. 224, 15 L. ed. 626.
Nor do we consider that the delivery of a deed to the trustee, Jacobson, amounted to anything. He was not authorized to accept it or to waive the conditions of the resolution. Nor, in the absence of any acceptance, did the mere fact of its being recorded amount to anything. Parmelee v. Simpson, 5 Wall. 81, 18 L. ed. 542; Samson v. Thornton, 3 Met. 275, 37 Am. Dec. 135; Welch v. Sackett, 12 Wis. 253; 1 Devlin, Deeds, § 290; Hawkes v. Pike, 105 Mass. 560, 563, 7 Am. Rep. 554.
Another reason why the judgment of the trial court must be affirmed is that the plaintiff Grow, prior to the hearing in the supreme court, dismissed his appeal, and the case comes before us on the appeal of F. W. Youngman, alone. We do not see that Youngman has any interest in the controversy at all, which this court or the trial court should have protected. The record shows that all of the property in controversy
High, Inj. § 1109-a.
Tbe judgment of the District Court is' affirmed.
