Schintz v. McManamy

33 Wis. 299 | Wis. | 1873

Lyon, J.

The deed was made and delivered to the defendant with the consent and by the procurement of his sister Elizabeth, who made the contract for the land with the plaintiff; but there is nothing in the, case to show,-or which even tends to show, that the plaintiff ever agreed to convey the lots to any person other than said Elizabeth, or that he ever authorized Emil to insert any other name in the deed as grantee.

It was doubtless competent for the grantors to authorize Emil, by parol, to insert tbe name of the grantee in the deed after they had signed and acknowledged the same. Vliet v. Camp, 13 Wis., 198; Van Etta v. Evenson, 28 id., 83. Bat we know of no rule or principle of law which makes the deed valid and operative to convey the title to a stranger, whose name has been inserted therein as grantee by the custodian of the deed, without authority from the grantor and in direct violation of his positive orders. Suppose, on tender of $225, and due demand for the deed, Emil had refused to insert the name of the defendant as grantee therein, and to deliver the deed to the latter. Can it be successfully claimed that the defendant could maintain an action against the plaintiff to compel him to convey the lots to the defendant? Would it not be a complete answer and defense to such action to show that the plaintiff never agreed to do anything of the kind — that he never made any contract whatever with the defendant in respect to the lots ?

It may be said that it is quite immaterial to the plaintiff whether he conveys the lot to the defendant or to his sister, so long as he receives the agreed price therefor. This may be true, and yet the plaintiff has an undoubted right to determine for himself to whom he will convey his land. He may be willing to convey to one person for a given price, but his right to refuse to convey to another person for the same price is undoubted. He may contract to convey to A., and yet be under no legal obligation to convey to B. on the same terms, even though A. may desire that he should do so. Diener v. Diener, 5 Wis., 483. In this case there is no pretense that' the plaintiff agreed to convey to the assignee of Elizabeth, or to such person as she might appoint. He only agreed to convey to her, and the direction which he gave to Emil, not to deliver the deed, was, at least, a positive refusal to convey to" any other person.

Were this a contest between the plaintiff and a bona fide grantee of the defendant, a question of negligence on the part of- the plaintiff, like that discussed in Tisher v. Beckwith, 30 Wis., 55, might arise, and it might, perhaps, be held that he was estopped to deny the validity of the deed to the defendant. But no such question is involved in this case, because the defendant knew that he had no agreement with the plaintiff which entitled him to a conveyance of the lots.

There are other questions which were discussed in the arguments of counsel, but the views above expressed are decisive of the case, and render the consideration of those questions unnecessary.

The judgment must be reversed, and the cause remanded with directions to the circuit court (upon payment into court, for the use of the defendant, of the amount tendered to him) to render judgment for the plaintiff granting the relief demanded in the complaint.

By the Court. — So ordered.