State v. Butler

| Minn. | Dec 12, 1891

Gilfillan, C. J.

Indictment for obtaining, through false pre-tences, “the signature of said W. W. Hurd to a certain warranty deed bearing date the 27th day of April, 1889, and executed by said W..W. Hurd and Amy Hurd, his wife, to said John Butler, and conveying to said John Butler” certain land described.

Several objections are made to the indictment, the first of which is that it does not appear that the instrument, the signature to which was obtained, was valid; it is not averred that it was a sealed instrument, nor that it was witnessed or acknowledged. The averment in the indictment that the instrument was a deed “executed by” and “conveying to,” etc., disposes of all such objections. The averment of execution includes everything necessary to full execution, and where, in pleading, it is alleged that an instrument was executed, the acts necessary to execution need not be alleged in detail.

The second objection is that the indictment fails to show the instrument signed to be one that can injure Hurd; it does not show that he had any interest in the land. The statute is not aimed at false pretences that can do no harm, and, where the signature to an instrument is obtained by false pretences, the case comes within the statute only if the instrument, or the affixing of the signature, may possibly prejudice the party who is thus induced to affix it. This indictment does not aver that Hurd or his wife owned any interest in the land, but it avers that the instrument to which his signature was obtained was a “warranty deed,” conveying real estate. We think the term “warranty deed” is generally, indeed always, among lawyers or laymen, understood to mean a deed with, at least, covenants of warranty. As such a deed creates a liability, the indictment was in this respect sufficient.

That the false pretences alleged are within the statute, and that the obtaining the signature or inducing the prosecutor to affix it is sufficiently averred, is in accordance with all the authorities.

Another objection to the indictment is made, which does not appear to have been made in the court below, but we will consider it. It is this: that the verbal representations as to incumbrances were merged in the covenants in the deed executed by defendant, and therefore an indictment for such representations will not lie. The false representations are alleged to have been made with respect to-incumbrances on land conveyed by defendant to Hurd with a covenant against in-cumbrances. That a mere false warranty is not a sufficient false representation, and that, where the only representations are such as may be implied from mere promises or contract obligations, the case is not indictable, is in accordance with reason, and also with authority. State v. Chunn, 19 Mo. 233" court="Mo." date_filed="1853-10-15" href="https://app.midpage.ai/document/state-v-chunn-7999236?utm_source=webapp" opinion_id="7999236">19 Mo. 233; Rex v. Codrington, 1 Carr. & P. 661. So far as there is any intimation in the latter ease that, where there is a written contract, an indictment will not lie for prior or contemporaneous oral false representation as to the same matter, it has not been followed, but has been disapproved. In State v. Dorr, 33 Me. 498" court="Me." date_filed="1851-07-01" href="https://app.midpage.ai/document/state-v-dorr-4929054?utm_source=webapp" opinion_id="4929054">33 Me. 498, the proper distinction was made. The court held a false representation that there was no incumbrance on property conveyed to be indictable, notwithstanding there was also a covenant against incumbrances, provided the representation, and not the warranty, induced the other party’s act. To the same effect is Watson v. People, 87 N.Y. 561" court="NY" date_filed="1882-01-31" href="https://app.midpage.ai/document/watson-v--people-of-the-state-of-new-york-3579863?utm_source=webapp" opinion_id="3579863">87 N. Y. 561. A party may be willing to take a contract because of bis belief in the representations of fact made to him by the other party. Ordinarily, the presumption would be that the party relied on the contract, and not on the representations, but it would not be conclusive.

Order affirmed.