23 Minn. 386 | Minn. | 1877
It is found by the court below that Joseph M. “Campbell was the owner of certain land, (being the same hereinafter referred to,) under a patent running from the United States to him, by the name of Joseph M. Campbell, and that, at the time of the conveyance, hereinafter mentioned, to defendant, said Joseph M. Campbell was a minor.
‘Joseph Campbell. [Seal.]
‘ Signed, sealed, and delivered in the presence of
‘ Joseph M. Campbell,
‘ Albert Sciieefer.’
“ That, immediately after the signing of said deed, as.
“ That immediately upon the acknowledgment of said deed, as aforesaid, the same was handed to said Brosseau, and the said Brosseau thereupon presented to said bank an ordinary bank check, drawn upon said bank by one G. K. Gilbert, (who then was and still is the husband of the defendant, Josephine Gilbert, in this action,) and which said check was then and there so drawn for the sum of $600, and was then and there paid in full to said Brosseau by said bank, and the same was, by said bank, charged to and deducted from the moneys deposited in said bank to the credit of said G. K. Gilbert; and that immediately
As a conclusion of law from these findings of fact the court finds : “ That the deed executed and delivered to the defendant, and bearing date of July 25, 1872, was sufficiently executed and acknowledged to make it the deed of the infant, Joseph M. Campbell.” We think this conclusion of law cannot be sustained. To make the instrument in question the deed of Joseph M. Campbell, it must have been signed and sealed by him, or for him. It ivas not signed and sealed by him. He not only did not write his name opposite the seal, but he wrote it in another place, viz., under the attestation clause — the place for the signature of a witness. His signature in that place cannot, on any reasonable ground, be taken to be anything but the signature of a witness. It cannot be twisted into a signing of the deed. Neither was the deed signed for him. The signature opposite the seal was written by Antoine Joseph Campbell, the natural father of Joseph M. Campbell, the true patentee. That signature was the-name of the person who wrote it, though not his full name. The fact that Joseph M. Campbell was able to write his name, and that he did write it as a witness upon this very paper, and that it Avas entirely unnecessary for any other person to Avrite it for him, is significant upon the question whether the signature
But, independent of these considerations, there is nothing in the findings of fact, or in the evidence upon which they are based, which shows, or tends to show, that the deed was signed and sealed for Joseph M. Campbell, or that he acknowledged it to be his deed. The signature prefixed to the seal was, as we have already observed, the name of the person who wrote it. There is nothing in the case showing, or tending to show, that it was put there as the signature of Joseph M. Campbell, or that he either expressly or impliedly requested it to be put there as his signature, or for him, or that he adopted it or recognized it as his signature, or as written for him. There is not even a shred of testimony showing, or tending to show, that he supposed, or had any reason to suppose, that any of the parties to the business believed or imagined that the signature “Joseph Campbell ” was the signature of Joseph M. Campbell, or written for him. The instrument is, therefore, not the deed of .Joseph M. Campbell.
It is, however, urged that, even if it be not his deed, he is estopped, by his receipt of the whole or a part of the purchase-money, to deny that it is, or that it conveyed the
The instrument through which the defendant claims not being the deed of Joseph M. Campbell, and, therefore, not conveying any title from him, it follows that no question of disaffirmance is presented by the case ; and, as no question of disaffirmance is presented, it further follows that,,, as respects the plaintiff’s right to maintain this action, m> question arises in this case as to the obligation of Joseph M. Campbell to restore any money received 'by him from defendant, or any one for her.
It further follows that, as the defendant bad no title to, ■the lands to which this,action relates, and as, from the facts in the case, she must be charged with notice of her want of .title, her payment of taxes upon the same was entirely gratuitous, and that she is not in law entitled to insist that she shall be reimbursed by the plaintiff.
The judgment is reversed, and the case remanded for judgment in accordance with the foregoing opinion.