80 P. 1117 | Idaho | 1905
Lead Opinion
A motion was made in this case to strike from the files, the “supplemental brief of appellant,” upon the grounds that the same was filed without permission of court having been obtained, and for the further reason that there is no authority in law or any rule of this court for the filing of
For the foregoing reasons respondent’s motion will be denied and the ease will be examined on its merits.
This action was commenced by plaintiff, W. G. Whitney, praying for a decree of the court quieting his title in and to lots 1, 2, 3, 5 and 6, in section 22, township 7 north, range 1 west, Boise meridian, and situate in Boise and Canyon counties, and for a perpetual injunction against the defendant thereafter asserting any claim whatever in or to the premises described. The defendant answered denying plaintiff’s right and title and setting up title in himself in and to an- undivided one-half interest in the premises described in the complaint. In order to properly understand this case it is necessary to recite somewhat at length the history of the dealings and transactions between the plaintiff, Whitney, Willard White (defendant’s grantor) and I. R. Beery (the grantor to both the plaintiff and White). The contract out of which all subsequent troubles seem to have grown was entered into on the seventh day of September, 1899, between the plaintiff Whitney and Willard White, and is as follows:
*646 “This agreement witnesseth: Whereas, W. G-. Whitney and Willard White haying acquired a dam, log storage and power site on the Payette river, at a point called the Black Bock Canyon about six miles above the town of Emmett, in Canyon County, Idaho, and,
“Whereas, it is proposed to secure sufficient funds with which to erect a dam at said site, about thirty feet in height, with a view to creating a large water-power to be used in sawing lumber, elevating water upon both sides of the Payette river, for the purpose of irrigation, and for generating electric power to be utilized for railway and such other purposes as may be found feasible,
“Now, therefore, in consideration of the premises, each of the parties hereto agrees to give his best efforts to the immediate accomplishment of the above-mentioned project, and does agree that the parties hereto are to own an equal interest in such undertaking, share and share alike.
“It is further agreed that in the event the said White shall fail to raise sufficient funds to construct said dam, or fails to make such progress • as shall be satisfactory to said Whitney within one year from the date thereof, the said White agrees to assign all his right, title and interest in the same to said Whitney.
“Witness our hands and seals this 7th day of September, 1899. W. GARRET WHITNEY.
“WILDARD WHITE.
“Witnessed by:
“BEN I. BLOCH.”
According to the testimony, White, in pursuance of the term of the contract of September 7th, went east for the purpose of raising money and procuring a contract for the proposed dam site, and on the twenty-sixth day of December of the same year entered into a contract with I. B. Beery of Minneapolis, Minnesota, as follows:
“This agreement made and entered into this 26th day of December, in the year of our Lord one thousand .eight hundred and ninety-nine.
*647 "Between. I. R. Beery of Minneapolis, Minnesota, the party of the first part, and Willard White of Boise, Idaho, party of the second part,
“Witnesseth, that the said party of the first part for and in •consideration of the covenants and agreements on the part of the said party of the second part hereinafter contained, agrees to sell and convey unto the said party of the second part, and the said second party agrees to buy all those certain lots, pieces .•and parcels of land situate in the counties of Canyon and Boise, in the state of Idaho, and more particularly described as follows, to wit: Lots one (1), two (2), three (3), five (5) and •six (6) of Section twenty-two (22), Township seven (7) North, Rjange one (1) West, B. M., for the sum of six thousand dollars.
“And the said party of the second part in consideration of the premises agrees to pay to the said party of the first part the ¡sum of six thousand dollars, to wit:
“One thousand dollars in cash on or before February 1st, 1900, and five thousand dollars in first mortgage bonds in a corporation to be formed for the purpose of developing a power plant at a point upon the above described property known as the Black Rock Canyon, said bonds to be issued upon said prop-•eriy and upon such improvements as shall be placed thereon.
“And the said party of the second part agrees to pay all state .and county taxes or assessments of whatsoever nature which •are now or may become due on the premises above described.
“In the event of failure to comply with the terms hereof by ■the said party of the second part, the said party of the first part shall be relieved from all obligations in law or equity to convey said properly and the said party of the second part ■shall forfeit all right thereto at the option of the party of the first part. And the said party of the first part on receiving such payment at the time and in the manner above mentioned agrees to execute and deliver to the said party of the second part or to his assigns a good and sufficient deed for the conveying and assuring to the said party of the second part the title to the above described premises free and clear of encumbrances other than the taxes hereinbefore mentioned. And it is understood that the aforesaid stipulations are to apply to and bind the heirs, execu*648 tors, administrators and assigns of the respective parties and that the said party of the second part is to have immediate possession of said premises.
“In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.
“I. E. BEEEY.
“WILLAED WHITEN
Thereafter, and on the twenty-fifth day of January, 1900,. I. E. Beery and wife made and executed their warranty deed to the entire tract of land and premises described in the complaint in this action, and in such deed named Willard White as the grantee, and on the date of its execution the deed was placed in the hands of grantee White, at the city of Minneapolis, and was thereafter by White brought back to the state of Idaho, and has ever since been in White’s possession and control. As to whether or not the deed of January 25th was ever actually delivered within the contemplation of law is a vital question in this ease.
The next important step in the course of these transactions occurred on April 25, 1900, when Beery and White entered into a new agreement which by its terms provided that it should take the place of the former agreement of date December 26th. The important part of the agreement of April 25th, and that which has any special bearing upon the matters in controversy in this action, is as follows:
"Witnesseth, that whereas I. E. Beery, party of the first part, is the equitable owner of the real property hereinafter described, while Willard White, party of the second part, holds the legal title thereto by virtue of a deed heretofore executed by the said I. E. Beery and wife, under agreement heretofore entered into by and between said Beery and said White, and
“Whereas, it is desired by the parties to enter into a new and different agreement at this time in relation thereto,
“Now, therefore, for and in consideration of the mutual covenants hereinafter contained, and to be by said parties paid, kept and performed, it is agreed: That said Willard White has this day become the owner, absolute, of the equitable as well*649 as the legal title to a one-half interest, undivided, in the property hereinafter described for the consideration of seven hundred and fifty dollars ($750.00), one hundred and fifty dollars of which said gross sum has this day been paid, the receipt whereof by said Beery is hereby acknowledged; one hunr dred dollars is to be paid on or before. May 15th, 1900, and the remainder of said sum of seven hundred and fifty dollars, to wit, five hundred dollars, is to be paid on or before January 1st, 1901.”
Thereafter, and on the thirteenth day of May, 1901, the plaintiff, Whitney, secured from Beery a quitclaim deed to the lands and premises in controversy, the title to which he seeks to quiet by this action,-and which title is derived from Beery through the medium of this deed alone. On the seventh day of August, 1901, White executed and delivered a quitclaim deed of an undivided one-half interest in and to the property described, to B. M. Cobban and George H. Casey, and on September 27, 1902, Cobban and Casey, by a quitclaim deed, conveyed their undivided one-half interest to the defendant, Dewey. Dewey traces his title through a chain of quitclaim deeds back to the warranty deed executed by Beery and wife on January 25, 1900.
At the trial the court permitted the plaintiff to introduce the testimony of I. B. Beery and other witnesses, showing a parol agreement and understanding had between White and Beery at the time of the execution of the deed of January 25th, and by the terms of which agreement it is contended that the deed of January 25th was delivered upon conditions thereafter to be performed and complied with by the grantee, White, and on the failure to perform which no title should pass under the deed. The defendant objected to the introduction of this class of testimony upon the grounds that the complaint alleges that the deed was placed in the hands of White with the understanding that the same should take effect and pass title from Beery to White only upon a compliance by White with the terms and conditions of the contract of December 26th, and that to permit parol testimony would be to contradict a written contract, and for the further reason that parol evidence is not admissi
“Mr. White first visited me about the 26th of December, 1899, when this contract was executed. Then he returned on the 25th of January, at the time we made the deed. At this time I executed and delivered to him this deed, placed it in his possession personally at the time he was in Minneapolis and he carried it back to Idaho. I placed it in Ms hands so that the matter could be closed up promptly in connection with the transferring of the property to the corporation that was contemplated; these bonds were to be paid and an issue of bonds on this property and power plant and ditches, etc., contemplated. I was to be paid when the matter was consummated and the bonds ready to be issued. The deed was placed in his hands to facilitate the matter and so that we all could save time. He could pay me when he used the deed just as though I sent the deed to him to hold. It was a matter of trust with me.”
Other witnesses testified to subsequent statements made by White to the same effect. The deed of January 25th from Beery to White was without any condition or reservation whatever expressed on the face of the instrument, and so far as can be gathered from the indenture itself, it is absolute. It is admitted that this deed was delivered by the grantor into the personal and manual possession and control of the grantee, and passed completely from the control and direction of the grantor. The contention made by plaintiff on this point is about as follows: That under the agreement of December 26th, White was expected to form a corporation for the construction of a big dam on the Payette river with its site upon the lands in controversy for the purposes of power and irrigation, and that as soon as the corporation should be organized the title to this property should be conveyed to such corporation, and thereupon Beery should be paid the sum of $1,000 and deliver $5,000 worth of first mortgage bonds to be issued
As above observed, this deed was delivered to the grantee and contained upon its face no conditions whatever precedent to the vesting of title. Appellant insists that the facts disclosed in this case show an absolute delivery of the deed and that parol evidence was inadmissible to attach any condition to the vesting of title under such a deed.
It is a well-settled principle of law that a deed cannot be ■delivered by the grantor to the grantee therein named to be held by the grantee in escrow. If such thing be done the result is that title vests at once in the grantee. The holder of an escrow must be a third party, who.for such purpose becomes the agent of both the grantor and grantee.
In 13 Cyclopedia, 564, the writer of the text says: “A deed cannot be delivered as an escrow to the grantee, and a delivery which purports to be such will operate as an absolute one. This rule, however, applies only to those deeds which are upon their face complete contracts requiring nothing but delivery to make them perfect, and does not apply to those which upon their face import that something besides delivery is necessary to be done in order to make them complete.” The writer cites many authorities in support of that text.
In 1 Devlin on Deeds, section 315, it is said: “A deed cannot be delivered to the grantee as an escrow. If it be delivered to him, it becomes an operative deed, freed from any condition not expressed in the deed itself, and it will vest the title in him, though this may be contrary to the intention of the parties. One of the grounds upon which this rule is based is that
In Braman v. Bingham, 26 N. Y. 483, the court of appeals-said: “The reason given for the rule excluding parol evidence-of a conditional delivery to the grantee applies to all cases where the delivery is designed to give effect to the deed, -in any event, without the further act of the grantor. ‘When the words are contrary to the act, which is the delivery, the words are of none effect.’ (Coke’s Littleton, 36a.) ‘Because then a bare averment, without any writing, would make void every deed.’ (Cro. Eliz. 884.) ‘If I seal my deed and deliver it to the party himself, to whom it is made, as an escrow upon certain conditions, etc., in this case let the form of the words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently.’ (Sheppard’s Touchstone, 59; Whyddon's Case, Cro. Eliz. 520; Cruise’s Digest, title 33, Deeds, c. 2, par. 80.) If a delivery to the grantee can be made subject to one parol condition, I see no ground of principle which can exclude any parol condition. The deed having been delivered to the grantee, I think the parol evidence that the delivery was conditional was properly excluded.”
The authorities to the foregoing effect might be multiplied, of which the following appear to be some of the leading eases: Blowitt v. Boornum, 142 N. Y. 357, 40 Am. St. Rep. 600, 37 N. E. 120; Darling v. Butler, 45 Fed. 332, 10 L. R. A. 469; Miller v. Fletcher, 27 Graft. 403, 21 Am. Rep. 359; Richmond v. Morford, 4 Wash. 337, 30 Pac. 242, 31 Pac. 513; Hubbard v. Greely, 84 Me. 340, 24 Atl. 799, 17 L. R. A. 511.
Counsel for respondent contend that while there was a manual delivery of the deed, there was no intention to pass title, and that on that theory of the case the evidence admitted was proper and competent to show such fact. While it is not directly contended that the grantee can hold a deed in escrow from his grantor, the argument of counsel as applied to the facts of this case would amount in the end to such a position. The leading authorities cited by respondent in support of this position are 9 Am. & Eng. Ency. of Law, 154; Black v. Sharkey, 104 Cal. 379, 37 Pac. 939; Lee v. Richmond, 90 Iowa, 695, 57 N. W. 613; Steel v. Miller, 40 Iowa, 403; Bunn v. Stewart, 183 Mo. 375, 81 S. W. 1091; Hastings v. Vaughn, 5 Cal. 315.
In 9 American and English Encyclopedia of Law, supra, under the heading of “What is Delivery — (c) A Question of Intention,” the author says: “The real test of delivery is this: Did the grantor, by his acts or words, or both, intend to devest himself of title? If so, the deed is delivered.” By the foregoing language we do not understand the writer to mean that where the question of the delivery of a deed arises, parol testimony may be introduced tending to show the intention of the
Counsel quote at length from Black v. Sharkey, supra, where the court uses language that would indicate the view that evidence might be introduced to prove that the parties did not intend the deed should take effect according to its terms; but it should be observed that in that case the only question under consideration, and the only one decided, was whether or not parol evidence might be introduced to show that the deed which had been duly executed and was found in the possession of the grantee had ever been in fact delivered. The opinion in that ease is by the court commissioners, and makes no reference to the former case of Mowry v. Heney, 36 Cal. 471, 25 Pac. 17. The latter opinion was by the court, and it was there expressly held that "when an absolute deed has been delivered to the grantee, the title becomes vested free from any condition, and its operation cannot be defeated by parol proof of an intention on the part of the .grantor, known to the grantee, that it should not take'effect except in event of the grantor’s death; nor is parol evidence admissible to show that the delivery of the deed to the grantee was subject to any condition not expressed therein.-” We cannot, therefore, view the Black-Sharkey case' as in any way overruling or modifying Mowry v. Heney. Hastings v. Vaughn was to the same effect as the latter casé.
In Lee v. Richmond, the Iowa court held that there had been no delivery of the deed and that the instrument had reached the hands of the grantee not by way of delivery as a consummation of the transaction, but for inspection and approval of another person; the court saying: "The deed was not to be regarded as delivered unless the settlement attempted was approved by Fulton, and, as it was not approved by him, there was never, in law, any delivery, and the deed is without effect.”
Steele v. Miller was a suit apparently founded on fraud in the transaction, and the court held that the minds of the parties had never met on the question of a delivery, and that no
In Bunn v. Stewart, a father appears to have executed deeds in favor of certain of his children and grandchildren, with the intention of retaining them until such future time as he saw fit to deliver them in the distribution of his estate, but later he became entangled in divorce proceedings and placed certain of the deeds in controversy in the hands of two of the grantees with instructions to hold them until he called for their return, but the grantees, contrary to his instructions, placed them of record, and the supreme court of Missouri held upon that state of facts that no legal delivery ever took place.
The extent to which the intention of the parties enters into the act of delivery of a deed is very fairly stated by the author in 13 Cyclopedia, 561, and'the authorities cited in support thereof. It is beyond controversy that the evidence of delivery must come from without the deed. In other words, a deed never shows upon its face nor by the terms thereof a delivery, and parol evidence thereof must necessarily be admitted when the question of delivery arises. And it will, perhaps, often be difficult to accurately determine the exact extent to which the intention of the parties is admissible as to the ultimate result of devesting the grantor of title, but such testimony should never be considered by the court to the extent of governing and controlling the express terms of the instrument where it is clear that a delivery has been made, even though the parties have mistakenly supposed the legal effect would be different. Of course such evidence would be competent if it should be shown that under no circumstances and in no event and under no conditions was the title ever to pass from the grantor; because such a showing would disprove a legal delivery. It would show a failure to consummate the contract and sale of the property. But where it is the intention of the parties for the title to pass upon any contingency or in any event from the grantor to the grantee and the deed is delivered to the grantee, absolute on its face, then the vesting of title becomes a question
In this case, giving the respondent the most favorable construction that can possibly be placed upon the evidence, it was the intention of the grantor, Beery, to vest title in his grantee, White, so as to enable the grantee to transfer a perfect title to the proposed corporation. Beery expected to receive $5,000 worth of first mortgage bonds of the corporation as a balance ■of payment of the purchase price of the property. Such bonds would have been valueless to Beery unless the corporation could secure a good and perfect title to the property on which the mortgage bonds were to issue. Now, then, the question arises: •Could the grantor, Beery, by warranty deed, absolute on its face, convey such a title to his grantee as would enable the grantee to pass a good and perfect title to the corporation, and at the same time attach such parol conditions to the deed upon its delivery as to preclude his grantee from conveying and transferring an equally good title to any other person or corporation? We must answer this question unqualifiedly in the negative. If the grantor, Beery, desired to limit the Tight of his grantee to transfer this property to any particular person or corporation, it was necessary to express that limitation upon the face ■of the instrument. For the foregoing reasons we are clearly ■satisfied that the court erred in receiving and considering the ■evidence offered for the purpose of showing a failure to vest title in the grantee.
There is another significant fact in this case, and one which alone would prevent the plaintiff from quieting his title under ,a quitclaim deed to the undivided one-half interest held by him, .and that reason is found in the agreement of April 25th. It is there recited that the parties desire to enter into a “new and
It has been suggested that since the appellant takes his title by quitclaim deed, he is for that reason chargeable with notice that the title of his grantor is doubtful, and that he is therefore not a bona fide purchaser. This appears to be conceded by counsel, but the same principle applies with equal force to the respondent who takes title likewise by quitclaim deed. Under this line of authorities both parties would be equally chargeable with notice of defeats in their grantor’s title. (9 Am. & Eng. Ency. of Law, 2d ed., 106, and notes; Leland v. Isenbeck, 1 Idaho, 469; Butte Hdw. Co. v. Frank; 25 Mont. 344, 65 Pac. 4; Anderson v. Thunder Bay Boom Co., 57 Mich. 216, 23 N. W. 776; Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717; Dickerson v. Galgore, 100 U. S. 578, 25 L. ed. 618.) It is doubtful, however, if such a rule could or ought to prevail under the recording laws of this state.
The judgment of the lower court will be reversed and the cause remanded for further proceedings in harmony with the
Rehearing
ON PETITION EOR REHEARING.
Respondent’s petition for a rehearing in this case does not present anything new or any question not originally considered by us, though it again discusses some questions which we did not deem it necessary to pass upon in the original opinion. The persistence with which counsel insists that we have mistaken both the law and the equities in this case has led us to again examine the ease at length, and, after so doing, we are unable to see wherein the judgment of the trial court could be affirmed. It must necessarily be true that the court cannot see either the law or the equities of a case in the same light in which they are viewed by counsel for the losing party; and it may be, indeed, that sometimes the court mistakes them entirely. However, notwithstanding counsel’s studied argument to the contrary, we are convinced that this is not a case where we have mistaken either.
We are asked in the petition to announce more definitely the position of the court as to what title White took under the deed of January 25th. The only interest the appellant claims, and for which he is litigating,' is an undivided one-half interest in this property, and we have held that under the record he is entitled to such interest. Under the deed of January 25th, the entire legal title passed from Beery to White. Dnder the contract of April 25th, Beery recognized that the entire legal title had passed from him and that all the interest he retained in the property was an equity. What that equity was is not recited, but we would infer from the record that it consisted in a vendor’s lien for the unpaid purchase price. By that contract Beery parted absolutely with all of his equity in an undivided one-half interest in this property. It therefore follows that after the execution of the contract of April 25, 1900, that both the legal title to the entire property and equitable title to an
It is suggested that White acquired all the interest he obtained in this property while sustaining a fiduciary relation toward Whitney, his paitner, under the agreement of September 7, 1899. This we think is correct, and it is equally true with reference to Whitney. But counsel contends that this relation had been terminated prior to the date on which Whitney acquired his deed. To this we cannot assent. The contract of September 7th was made for a period of one year, and yet respondent repeatedly admits in his testimony that they continued to do business in all respects as though it were still in force and effect from the date upon which it was executed until the 1st of April, 1901, and that all that then occurred looking to the termination of the partnership relation consisted merely in respondent notifying White that he was going to declare the matter off. It takes more than a notice of this kind to dissolve a partnership and terminate a trust or fiduciary relation existing between partners. If White acquired the entire title, one-half thereof would undoubtedly have inured to the benefit of his partner, Whitney. If, on the other hand, he acquired only a one-half interest in the property and in the meanwhile and during the existence of that relation, and in pursuance thereof, his partner acquired the other half interest, then such interests and equities must offset each other and the obligations resting upon them by reason of such relation will be met in that respect.
It should be further observed that it nowhere appears that any of these statements or declarations made by White were subsequent to the contract of April 25th. It would appear, however, from the record that they must have been made prior to that time. It seems to us from a reading of the record before us that respondent must have understood that he and his associate White were acquiring title by virtue of the deed of January 25th and contract of April 25th, or else he would not have continued to occupy and improve the property for a period of more than a year thereafter. They do not appear to have had any other contract or agreement whereby they could acquire the title to that property, as they had failed to make their payments under the contract of December 26th, and that contract had been superseded by the contract of April 25th. It
' Other questions were argued by respondent in his brief and have also been presented in his petition for rehearing, but we do not think they properly arise upon this appeal, nor is the record in such a condition as to justify us in discussing them. Besides, a legal determination of some of the points urged would necessitate other parties to the action in order to give them any binding effect. We find no reason for granting a rehearing in this case, and it will therefore be denied.