59 Neb. 71 | Neb. | 1899
This case is on rehearing. For former opinion see 58 Nebr., 119. A reconsideration of the cause has convinced us that the former decision was wrong, and we will now briefly state the reasons for the conclusion we have finally reached.
The action was to recover the purchase price of certain real estate. The statute of frauds is relied upon as a defense. Upon this question upon the former hearing it was said: “Another argument is that the evidence shows that the contract by these parties was an oral one; that Moss was not bound to convey, and, therefore, Soward is not bound. There are two answers to this contention: (1) The proposition of Soward to purchase
Moss executed a deed to the land and transmitted the same by mail to the First National Bank of Danville, Illinois, to be by it delivered to Soward on his paying to the bank the purchase price. The bank received the deed, but it was never delivered to Soward; and the bank had no authority to make the delivery without the payment of the consideration. The bank was the agent of Moss and not of Soward, and as there was no delivery of the deed to the vendee or his authorized agent, the sale was never consummated. Until the purchaser’s money was paid the deed was under the control of Moss, who could have ordered the same returned to him. There was no such performance of the contract as to take the case out of the statute of frauds. The title never vested in Soward. A deed left in the hands of the grantor’s agent to be held until the purchase-money is paid is not a delivery to the grantee. See Patrick v. McCormick, 10 Nebr., 1; Wier v. Batdorf, 24 Nebr., 83. The contract being within the statute of frauds, is not binding, and an action will not lie thereon to recover the purchase-money. The judgment of the district court is reversed, and the cause remanded for further proceedings.
Eeversed and remanded.