175 Iowa 92 | Iowa | 1916
No question is made but that plaintiff was charged with notice of the recitals in the conveyance from Jenkins to Trahan, if that conveyance as changed was acknowledged. Aetna Life Ins. Co. v. Bishop, 69 Iowa 645; Huber v. Bossart, 70 Iowa 718. Appellee (plaintiff) contends, however, that, as the change in names of grantee occurred after the deed became effective by delivery to convey the land to Mary Paulley, the substitution of the name “Napoleon Trahan” as grantee, instead of hers, operated as a new deed. Conceding, as appellant contends, without so deciding, that the grantee ratified this change, we inquire whether in such circumstances the deed must have been redelivered and reacknowledged, in order that the record thereof shall be constructive notice to third persons. If so, then plaintiff, in acquiring the lot from Trahan, was not charged with notice of recitals in the deed from Jenkins to Trahan, and took it freed from the lien of the mortgage. On the other hand, if another delivery and acknowledgment were not essential to the recording of
Of course, the wife of the grantor, not having consented to the change, was not bound thereby. For all that appears, she might have been perfectly willing to join in a deed to Mary Paulley, and yet decline to part with her dower interest to Trahan. Nor do we think a change in the parties to a deed— that is, of grantee or grantor — after its delivery can effect the symbolic transfer of title already accomplished, or can be made without creating of it a new instrument of conveyance. The instrument, prior to alteration in such circumstances, has accomplished its purpose by the transmission of title to the then grantee, and the latter is not divested by the change. If anything is destroyed by the change, it is the deed, and not the title.
A deed may be altered, mutilated, changed or wholly destroyed so as to be no longer competent evidence or capable of being introduced in evidence, yet the title vested in the grantee is not thereby destroyed. 1 Devlin on Real Estate (3d Ed.), Sec. 461a; 13 Cyc. 721; Waldron v. Waller, 32 L. R. A. (N. S.) 284, 293, and note. In Gibbs v. Potter, 166 Ind. 471 (9 A. & E. Ann. Cas. 481), the court announced the principle to be well settled that the alteration or destruction of a deed subsequent to its full execution, although done by consent of parties, will not divest the original grantee of title or revest such title in the grantors. Stanley v. Epperson, 45 Tex. 644; Tabor v. Tabor, 136 Mich. 255 (99 N. W. 4); 9 Am. & Eng. Ency. of Law (2d Ed.) 163; United States v. Widow and Heirs of West, 22 How. (U. S.) 315 (16 L. Ed. 317); Woods v. Hilderbrand, 46 Mo. 284 (2 Am. R. 513); Wheeler
“An alteration in the description of property embraced in a deed, so as to make the instrument cover property different from that originally embraced, whether or not it destroys the validity of the instrument as a conveyance of the property originally described, certainly does not give it validity as a conveyance of the property of which the new description is inserted. The old execution and acknowledgment are not continued in existence as to the new property. To give effect to the deed as one of the newly described property it should have been reexecuted, reacknowledged, and redelivered. In other words, a new conveyance should have been made.”
In Waldron v. Waller, 65 W. Va. 605 (32 L. R. A. (N. S.) 284, 285), the change was by adding to the property conveyed after delivery of the deed, and the court observed that:
“The authorities we think make it clear that, although such alteration may have been with the consent of the grantors, the ’deed cannot operate to invest in the grantee land not covered by the original grant, without a redelivery of the deed by them, and if it has been acknowledged before the alteration, the deed should be again acknowledged” — citing, among other authorities, 1 Devlin, Deeds, Sec. 461a.
Cases are sometimes cited as holding to a contrary doctrine, but upon examination they do not seem to impair the rule as stated. Thus, in Baker v. Baker, 239 Ill. 82 (87 N. E.
In Chezum v. McBride, 21 Wash. 558 (58 Pac. 1067), the court, without discussing this question, upheld a title founded upon a deed which had been altered by adding a section number in the description of the land conveyed, and by inserting upon the margin of the deed a further description, where it appeared that the alteration had been ratified by grantor, and he had never afterwards exercised any act of ownership over the land in controversy. Whether the land originally intended to be conveyed lay in both section numbers, or in the one originally in the deed, or in the one inserted, cannot be ascertained from the opinion. In Eadie v. Chambers, 24 L. R. A. (N. S.) 879 (18 A. & E. Ann. Cas. 1096), the court held that an alteration reducing the fractional interest of a
It will be observed that none of these decisions are in conflict with the rule as stated that, where the name of the grantee or the description of the property has been changed after delivery, the changed instrument must be regarded, as to the new grantee or the property not previously included, as a new instrument, exacting delivery and acknowledgment to be recordable. Appellant relies somewhat on cases where deeds are acknowledged before the names of the grantees have been inserted. See Creveling v. Banta,, 138 Iowa 47; Hall v. Kary, 133 Iowa 465. There, the acknowledgment is of a conveyance to a person whose name is subsequently to be inserted; while here, it was of an instrument conveying the property to a designated person. In the former, the insertion of the name is essential to effect the transfer of the legal title; in the latter, the conveyance has been completed, and the change is undertaken in order to transfer title from one grantee, to the other. The cases are not analogous. We are of opinion that, to become effective as a conveyance, the deed as changed must have been delivered to the new grantee (Trahan) and that, to be recordable in its new form, it must have been acknowledged again.
We are content with the decree, and it is — Affirmed.