Allen v. Ayer

Citation26 Or. 589,39 P. 1
PartiesALLEN v. AYER et al.
Decision Date11 February 1895
CourtSupreme Court of Oregon

Appeal from circuit court, Benton county; J.C. Fullerton, Judge.

Action by Morris Allen against John L. Ayer and others to cancel a deed. Judgment for plaintiff, and defendants appeal. Affirmed.

W.Y. Masters, for appellants.

F.A. Chenoweth, for respondent.

BEAN C.J.

This is a suit to set aside and cancel a deed from the plaintiff to one John L. Ayer, and also a deed from Ayer to defendant Long. The material facts, as disclosed by the testimony, are that in July, 1893, the plaintiff listed for sale with Judge Chenoweth, who was then doing business as a real-estate agent at Salem, a farm in Benton county, upon which he then, and has ever since, resided consisting of 576 acres. A few days thereafter, Chenoweth received from Ayer an offer, in behalf of an undisclosed principal, of $4,500 in bonds of the New England National Building, Loan & Investment Association, for 227 acres of the land, and, being favorably impressed with the proposition, in company with one Minton, who was interested with him in the proposed sale, drove out to plaintiff's residence, some miles from Salem, to consult him about the matter; but plaintiff refused to make the proposed trade until he could be satisfied of the validity and value of the bonds so offered. However, at the request of Chenoweth, and for convenience in case the trade should be consummated plaintiff executed and delivered to him a deed for the property, in which Ayer was named as grantee, but with express instructions not to deliver it to Ayer without his consent. Chenoweth returned to Salem with the deed, and a few days afterwards Ayer came up from Portland, when he was informed by Chenoweth that plaintiff was unwilling to make the trade without further inquiry as to the bonds, and had instructed him not to deliver the deed until specially authorized. Ayer, however, represented that he was making the purchase for some eastern clients, who were becoming impatient at the delay, and asked permission to take the deed to Portland for their inspection, in order to satisfy them that the trade was in progress. Chenoweth, relying upon the honor and integrity of Ayer, consented, but with the express understanding that such consent was not to be deemed a delivery of the deed, but that it was to be returned to Salem, and, with the bonds which Ayer left with Chenoweth deposited in some bank until plaintiff should determine whether or not he would make a trade. Ayer failed to comply with the agreement, and, without the knowledge or consent either of plaintiff or Chenoweth, placed the deed on record in Benton county, and a short time afterwards traded 80 acres of the land for a house and lot in or near Portland, to the defendant Long, who claims to be an innocent purchaser for value, and without notice. After consummating this trade, Ayer immediately left the state, and has since remained away. The plaintiff had no knowledge of the delivery or recording of the deed, or receipt of the bonds by Chenoweth, until after the sale to Long, and never in any way ratified such sale, or acquiesced therein. The bonds which Ayer proposed to exchange for the land proved to have been illegally issued, and being, therefore, of no value, were returned to his agent before this suit was commenced. The two leading questions in the case are: (1) Did the delivery of the deed to Ayer by Chenoweth, under the circumstances detailed, pass the title? And (2) if not, did the defendant Long obtain a title to the 80 acres by his purchase from Ayer without notice of the manner in which possession of the deed was obtained?

It is elementary law that the delivery of a deed by the consent or with the acquiescence of the grantor is essential to pass title. 1 Devl. Deeds, § 260. Without such a delivery, it is ineffectual, although it may have been executed in due form spread upon the records, and be in the actual possession of the grantee. While no specific formalities are necessary to constitute a delivery, it is essential that the grantor must consent, either expressly or impliedly, that the deed shall pass irrevocably from his control. And it is said that "a deed delivered without the knowledge, consent, or acquiescence of the grantor is no more effectual to pass title to the...

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19 cases
  • Mosley v. Magnolia Petroleum Co.
    • United States
    • New Mexico Supreme Court
    • 10 Giugno 1941
    ...Mfg. Co. v. Branch, 5 Cir., 60 F. 201; Betts v. Ward, 196 Ala. 248, 72 So. 110; King v. Diffey, Tex.Civ.App., 192 S.W. 262; Allen v. Ayer, 26 Or. 589, 39 P. 1; Gibson v. Gibson, 200 Ala. 591, 76 So. 949; Thomas v. Scougale, 90 Wash. 162, 155 P. 847, Ann.Cas.1918C, 452, and note beginning at......
  • Archambeau v. Edmunson
    • United States
    • Oregon Supreme Court
    • 26 Febbraio 1918
    ...instrument. Fain v. Smith, 14 Or. 82, 12 P. 365, 58 Am. Rep. 281; Shirley v. Burch, 16 Or. 83, 18 P. 351, 8 Am. St. Rep. 273; Allen v. Ayer, 26 Or. 589, 39 P. 1; Hoffmire v. Martin, 29 Or. 240, 45 P. 754; v. Cate, 29 Or. 515, 45 P. 800; Payne v. Hallgarth, 33 Or. 430, 54 P. 162; Swank v. Sw......
  • Cobban v. Conklin
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 6 Ottobre 1913
    ... ... of the grantor does not divest the grantor's title ... Henry et al. v. Carson, 96 Ind. 412; Allen v ... Ayer, 26 Or. 589, 39 P. 1; Steffian v. Bank, 69 ... Tex. 513, 6 S.W. 823; Tisher v. Beckwith, 30 Wis ... 55, 11 Am.Rep. 546; Bowers v ... ...
  • Webb v. Stewart
    • United States
    • Oregon Supreme Court
    • 13 Maggio 1970
    ...Oregon cases holding in favor of the grantor where he has handed the deed to the grantee or the grantor's agent. Thus in Allen v. Ayer, 26 Or. 589, 39 P. 1 (1895) the court held that the grantor who remained in possession prevailed where his agent handed the deed to the grantee for inspecti......
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