Hall v. Kary

Mar 5, 1907
Reporters:
,
Before:
McClain
McClain, C. J.

‘Although this action was tried below in equity, and the case is therefore triable here de novo, the appellant relies upon errors of law as well as upon the claim that a different result should have been reached on the merits.

*4671 pleadings-instruments -°f damages. The errors of law relied upon will be first briefly considered. It is claimed that the court erred in striking from the petition the allegations as to damages. But the action1 was cancel an(l se^ aside a pretended conveyance, and the granting of this relief did not involve any allowance of damages. No facts being alleged, entitling plaintiff to relief by’ way of damages if he should succeed in securing -the relief by way of cancellation which is prayed ‍​‌‌‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌‌‌‌​​​​‌​​‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌​​​‌​‌​​‍for, and no allegations on which damages by way of alternative relief, in the event that cancellation was not awarded being made, the court properly struck all the allegations relating to damages from the petition.

2. rulings-upon view. ’ Error is assigned in sustaining objections to questions asked of witnesses by plaintiff’s counsel, and overruling objections interposed by plaintiff’s counsel to question asked in behalf of defendant; but, as. counsel does not poin,t out in what respect the court erred in the ruling referred to, there is nothing for us to consider under this assignment.

s. pleadings: motion to strike. There is no merit in appellant’s complaint that the court erred in overruling a motion to strike defendant’s answer and cross-petition filed after the evidence had been taken, and the testimony closed. This was v , _ _. . _ ‘ a matter resting m the discretion oi the court, and it does not appear in any way that its discretion was abused or that any prejudice resulted to appellant. If plaintiff was not entitled to have the conveyance to the defendant Mrs. Kary set aside, then‘the decree dismissing plaintiff’s petition would effectually cut off any right which plaintiff might have in the property as against such’ defendant, and plaintiff is not deprived of any substantial rights by the entry of a decree quieting the title in said defendant as against the plaintiff.’

*4684. Deeds: delivery with name oí grantee blank. *467With respect to the merits of the case ‍​‌‌‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌‌‌‌​​​​‌​​‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌​​​‌​‌​​‍made in plaintiff’s petition, it is the contention of appellant that the evidence *468to be entitled to the cancellation of a deed to showed him his homestead which, as he claims, was never signed by him and his wife, and which, as he further claims, if executed by them, was blank as to grantee, and delivered to Chamberlain, one of the defendants, in ‘an exchange of property made with said Chamberlain, and the name of defendant Mrs. Kary inserted therein without plaintiff’s authority. It is also claimed that the deed, if executed and delivered, was without substantial consideration, and procured by false and fraudulent representations on the part of said Chamberlain, and by collusion and conspiracy between said Chamberlain and defendant Mrs. Kary and her husband. The deed of plaintiff and his wife to the property in controversy was attached as an exhibit to plaintiff’s petition and their signatures thereto were admitted in their testimony to be genuine, and we think plaintiff has wholly failed to make out his claim that these signatures* were written on a blank piece of paper which was afterwards, without their authority, converted into an instrument in point and writing purporting to be a deed. It appears beyond controversy that plaintiff left the instrument which had been thus executed by him and his wife with Chamberlain, and accepted and retained possession of a conveyance of property in exchange for that in question; and it must be presumed that, although ‍​‌‌‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌‌‌‌​​​​‌​​‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌​​​‌​‌​​‍plaintiff’s deed was blank as to grantee, the intention was to vest Chamberlain with title to the property described therein, and authorize him to insert the name of a grantee as he should see fit. That a deed thus left blank as to the grantee, being otherwise fully executed, vests title in the person whose name is subsequently inserted therein by the one to whom it is delivered as a conveyance is well settled in this State. Swartz v. Ballou, 47 Iowa, 188; Logan v. Miller, 106 Iowa, 511; McClain v. McClain, 52 Iowa, 272; McCleery v. Wakefield, 76 Iowa, 529.

The only contention in argument with reference to want *469of consideration is that the conveyance of the land taken in exchange was by deed of the owner thereof, blank as to grantee, delivered by Chamberlain to plaintiff. But what has just been said as to the effect of such a deed disposes of this question. There is no contention that the law of Missouri as to the effect of a deed blank’ as to grantee is different from that of this State. There was therefore a sufficient consideration for the conveyance which plaintiff is seeking to have set aside. The fraud relied upon by plaintiff as a ground for setting aside his deed consisted, as it is alleged, of false representations made by Chamberlain to him with reference to the character of the Missouri land which was taken in exchange. There is a square conflict in the evidence as to such ‍​‌‌‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌‌‌‌​​​​‌​​‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌​​​‌​‌​​‍alleged misrepresentation, and, as the trial judge had the witnesses before him he was in a better position to pass upon the credibility of the witnesses than we are, and we might safely predicate our affirmance of the decree on the ground that the fraud relied upon is not made out by such clear and satisfactory evidence as would justify the exercise of the equitable power to set aside plaintiff’s deed.

5. same: good chaser.ur But there is another consideration which, as it seems to us, is conclusive as against plaintiff’s right to a rescission so far as it would affect the title of the defendant Mrs. Kary. The transaction, by which plaintiff’s property conveyed to Chamberlain by the blank deed was sold and transferred to Mrs. Kary by the insertion of her name in such deed as grantee, was subsequent to the execution and‘delivery of the deed from plaintiff to Chamberlain. The evidence does not in any way connect Mrs. Kary with any fraud in the transaction between plaintiff and Chamberlain. Mrs. Kary paid to Chamberlain a full consideration for the property, $100 in cash, and $100 by note and mortgage to Chamberlain’s wife, given at his direction. Mrs. Kary thereby became the purchaser for value without notice of any fraud affecting the conveyance from plaintiff to Chamberlain, and she affirma*470tively shows that she was a purchaser iu good faith and without notice. That one who takes a conveyance of property by delivery of a ‍​‌‌‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌‌‌‌​​​​‌​​‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌​​​‌​‌​​‍deed executed and delivered to his grantor by a prior owner and blank as to the name of the grantee becomes a purchaser without notice as effectually as though his grantor had executed a direct conveyance is established by our cases. See, especially, McCleery v. Wakefield, 76 Iowa, 529. There is no question in this case but that Mrs. Nary is a good faith purchaser for value. She does not simply stand in the shoes of Chamberlain, entitled to reimbursement for the amount she has paid for the property, but she is entitled to the property itself as against any right of the plaintiff to rescission of his conveyance to Chamberlain, on account of fraud in that transaction.

The decree of the trial court is affirmed.