99 Kan. 355 | Kan. | 1916
The opinion of the court was delivered by
The action in the court below was to set aside and cancel a deed which the plaintiffs, who are husband and wife, delivered to H. C. Snook, conveying to him a lot in Kansas City in exchange for other property. The plaintiffs claimed that in consideration for the deed Snook agreed to convey to them the title to certain real estate in Oklahoma; that the deed he delivered to them conveyed no title to the Oklahoma land, as he well knew, and that they received no consideration for their deed; that afterwards defendant Honnell filed for record the deed they had executed to Snook, but with Honnell’s name written therein as grantee instead of the name of Snook, and that subsequently Honnell. conveyed the property described therein to the other defendants. Plaintiffs offered to quitclaim to Snook any interest they might have acquired in the Oklahoma land and asked for cancellation of their deed • on the ground of fraud.
Defendant Honnell filed a separate answer containing a general denial and alleging that he had no knowledge concerning the transaction in relation to the land in Oklahoma, and further alleging an oral agreement between plaintiffs and Snook that their deed should be executed and delivered in blank as to the grantee, with power and authority in Snook to fill in the name of any grantee to whom he might desire to transfer the property, and that when the plaintiff’s deed was tendered to Snook with the latter’s name as grantee therein, plaintiff C. L. McQlung, acting for himself and wife, agreed that Snook’s name might be stricken out in order to make the deed conform to the agreement.
The answer denied notice either of the fraud alleged against Snook or that plaintiffs, had or claimed any interest in the property. The material facts found by the trial court are in substance these: The deed in question was delivered December 20, 1913; the trade was made in accordance with a contract between the plaintiffs and Snook, in which C. L. Me-
The plaintiffs rely upon paragraph 5 of the syllabus of the original opinion in Ayres v. Probasco, 14 Kan. 175, to sustain their contention that the authority of an agent to make a change in a deed before delivering it is void unless in writing. Mr. Justice Brewer dissented (p. 191) from the statement of law declared in that paragraph of the syllabus and on>a rehearing of the case (p. 192) the court held the paragraph and corresponding parts of the opinion to be dictum. (See comment thereon in Bank v. Fleming, 63 Kan. 139, 143, 65 Pac. 213.) The facts in the Ayres case are quite different from the facts presented here. The mortgage in that case was blank except for the signatures and acknowledgment of the husband and wife. It was afterwards filled in as to grantee, description of land and consideration, contrary to the wife’s intention. Here the alteration in the instrument, 'instead of being contrary to the intention of the parties, was in strict compliance with their original agreement. The deed with Honnell’s name as grantee was recorded four days afterward; plaintiffs had notice of its contents from the record and made no objection until four months later.
Some importance is sought to be attached to the fact that the answer alleges that C. L. McClung “was thereunto duly authorized, and then and there consented orally that defendant Snook might erase his name as grantee and fill in the name of any person,” whereas the proof shows that his agent, Johnson, actually made the erasure. It was done by Johnson for Snook in the latter’s presence and the effect was the same as if Snook’s hand held the pen.
So far as the name of the grantee was concerned, the deed as finally delivered was completed in accordance with the agreement of the parties; it was duly acknowledged and entitled to record, and the plaintiffs are estopped to deny that
The judgment is affirmed.