85 Neb. 102 | Neb. | 1909
This is an action to quiet plaintiff’s title to a quarter section of land in Custer county. Patrick McGuire, a brother of plaintiff, acquired the land as a government homestead, having obtained the final receipt September 10, 1886, and the patent April 11, 1889. Plaintiff’s claim to title rests on a warranty deed from Patrick McGuire. It was dated November 1, 1886, and recorded June 19, 1888. The county records show a reconveyance from Robert McGuire to Patrick McGuire December 28, 1889, but plaintiff alleged it was a forgery, and that in his absence from the' state Patrick McGuire induced some one to impersonate plaintiff, and to execute, acknowledge and deliver the forged instrument. Plaintiff further averred that Patrick McGuire, on the strength of the apparent 'title based on the forged deed, borrowed money and mortgaged plaintiff’s land to secure the loan; that the mort-' gage was foreclosed, and that defendants, with full knowl
Defendants denied plaintiff’s alleged ownership and title, and averred that Patrick McGuire, without plaintiff’s knowledge and without consideration, signed, acknowledged and registered the deed under which plaintiff claims title. They also alleged that the deed was never delivered; that it was never the intention of Patrick McGuire to deliver it, or by means of it to divest himself of title, or to convey'the land to plaintiff; that grantor kept the deed and retained possession of the land; and that the deed was made for the purpose of ostensibly divesting the title of grantor in furtherance of a design on his part to preempt a tract of government land near his homestead. Defendants also pleaded mesne conveyances from the purchaser at the foreclosure sale and the defense of adverse possession. In addition, they denied knowledge of the alleged forgery. On all the issues raised by the pleadings the trial court found in favor of defendants and dismissed the suit. Plaintiff appeals.'
Thirty-one errors are assigned, but the sum of all of them is that the judgment is not sustained by the evidence. Plaintiff relies on his deed from the patentee, shows he did not reconvey the land, and argues his title has never been divested. To justify the dismissal of the suit, defendants argue that plaintiff’s deed was never delivered to him, and that, therefore, he never had any title to the land in controversy. The;/ also rely on adverse possession as a defense, and insist that the finding in their favor on that issue is sustained by the evidence. The first question presented by the record, therefore, is: Do the proofs show a delivery of the deed from Patrick McGuire to his brother Robert McGuire? There was no actual delivery or formal acceptance, but plaintiff insists the deed was signed and acknowledged by the grantor and recorded pursuant to his
This court is committed to the rule that actual delivery and formal acceptance of a deed are not essential to its validity, where grantor placed it on record for the purpose and with the intent of transferring the title pursuant to a valid agreement between the parties. Fryer v. Fryer, 77 Neb. 298. In the case cited, and in other cases announcing a similar doctrine, the intention to transfer the title is a material element. In the present case such an intention is entirely wanting. While registration is evi
Cases inA'olving the acts of grantors in leaving deeds with magistrates or recording officers for delivery are distinguishable from the present case. In those cases the intention to deliver the deed or to transfer the title is. sliOAvn by proof or inferred from circumstances. Here a different purpose is fairly established under the rule that delivery is a question of intent, as announced in Brown v. Westerfield, 47 Neb. 399. In Samson v. Thornton, 3 Met. (Mass.) 275, Chief Justice ShaAV said: “A deed takes effect by delivery. An execution and registration of a deed, and a delivery of it to the register for that purpose, do not vest the title in the grantee. Nothing passes by it. Maynard v. Maynard, 10 Mass, *456. This is distinguishable from the case of Hedge v. Drew, 12 Pick. (Mass.) 141, where the father proposed to the daughter to execute a deed to her, and to leave it Avith the register for her use, and she expressed her assent to, and satisfaction Avitli, the arrangement. She thereby made the register her agent to receive the deed.”
Under the law applicable to the proofs in the present
Affirmed.