Upton v. Archer, 41 Cal. 85

Upton v. Archer

41 Cal. 85 | Cal. | 1871

Lead Opinion

By the Court, Rhodes, C. J.:

The plaintiff being the owner of the tracts of land described in the complaint, offered to sell the same to two certain persons, and before they had accepted the offer, he signed and acknowledged an instrument, in form a deed, sufficient to convey the lands, except that a blank was left for the insertion of the names of the proposed purchasers as the grantees. He left this instrument with Webster, and gave him verbal directions to fill the blank with the names of the proposed purchasers if they accepted the offer. During the absence of the plaintiff, Webster sold the lands to the defendant, on the same terms that the plaintiff had offered to sell them to the proposed purchasers from him, caused the name of the defendant to be inserted in the instrument above mentioned, delivered it to the defendant as the plaintiff’s deed, and received and still retains the portion of purchase money which was paid in hand, and the defendant’s promissory note payable to the plaintiff for the residue of the purchase money. Upon the plaintiff’s return, he refused to receive from Webster the money or the note.

When that instrument was left with Webster by the plaintiff, it was not his deed, for the obvious reason that there was only one party to it. Ho one could convert it into his deed except the plaintiff himself, or some one by him thereto duly authorized; and as it could not become the plaintiff’s deed until the name of a grantee was inserted, that act could not be performed by an agent, in the absence of the plaintiff, unless his authority was in writing. (Storey on Agency, Sec. 49, and notes; Dunlap’s Raley on Agency, 157, and notes.) The case comes within the sixth section of the Statute of Frauds.

The plaintiff is entitled to judgment on the findings, but not to the judgment which he prayed for in his complaint— that the defendant be ordered to reconvey the premises to *88the plaintiff—for the deed not being the deed of the plaintiff, the title to the premises did not pass to the defendant. But the plaintiff is entitled to a judgment ordering the deed to be canceled. It apparently conveys the title; but as to the plaintiff, it was at its inception, fraudulent in law and void, and it became and still remains a cloud upon his title.

Judgment reversed and cause remanded, with directions to enter a judgment, ordering the deed to be delivered up and canceled.

Concurrence Opinion

Wallace, J., concurring specially:

I concur in the judgment.

Mr. Justice Sprague expressed no opinion.