Brugman v. Jacobson
| Decision Date | 18 March 1919 |
| Citation | 171 N.W. 882,44 N.D. 114 |
| Court | North Dakota Supreme Court |
Action for specific performance.
From a decree entered therefor in District Court, Ward County Leighton, J., defendants appeal.
Reversed with instructions to enter judgment for defendants.
Reversed with instructions.
Halvor L. Halvorson, for appellants.
Greenleaf Wooledge & Lesk, for respondent.
This is an action for specific performance to enforce a contract for the sale of land. The facts substantially are these: On March 30, 1917, the defendants made with the plaintiff a written contract, which provided that the plaintiff agreed to sell, and the defendants agreed to buy, 160 acres of land in Mountrail county, for a consideration of $ 1,500, taxes and interest to be paid to date. At the time the contract was made, the title to the land stood of record in the names of C. H. Reynolds, C. H. Fiegenbaum, and Anne L. Keogh, in fee. At the same time there was outstanding of record, and in fact, a mortgage made by such fee owners for the sum of $ 1,400. The plaintiff claims to be the owner of the land. He received a warranty deed therefor from the grantors with the name of the grantee therein left blank. This deed he tendered to the defendants and he testified that he was willing to fill in the names of the defendants, as grantees therein. He further testified he had a written privilege to fill in such blank from C. H. Reynolds, but this written privilege was not introduced in evidence. He did not tender to the defendants any deed from himself as vendor; he had no deed from such grantors excepting the deed in blank. He testified that his mother was holding, and had been holding, for some two months, this blank deed, as well as the $ 1,400 mortgage, and the satisfaction thereof, as collateral security for moneys his mother had advanced to him. The defendants refused to perform, basing their objections largely upon an alleged oral understanding that the plaintiff would furnish the money to finance the transaction, or the means so to do; and that the plaintiff had not carried out his oral promise. It appears that there were some judgments against the plaintiff, the amounts of which are not shown. The plaintiff testified that the defendants did not want a deed through him, because of these judgments, and because, further, it would cloud the title. The answer of the defendants sets up two defenses: First, that the written contract in question did not contain all of the agreements made between the parties; and, second, that the plaintiff was not the owner of the property, and never tendered performance on his part. Upon trial, the district court, pursuant to findings made, rendered a decree of specific performance, requiring the defendants to pay $ 1,635 and costs, and upon refusal so to do, to be subject to execution therefor. From this judgment the defendants appeal, and ask a trial de novo in this court.
Clearly, upon well settled principles of law, the plaintiff upon the record herein is not entitled to specific performance of the written contract.
Section 7220, Comp. Laws 1913, provides: "An agreement for the sale of property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt."
In Easton v. Lockhart, 10 N.D. 181, 86 N.W. 697, this court said that it was well settled that a purchaser of land cannot be compelled to accept, or to pay the purchase price, in a case where the vendor's title is so clouded by claims and demands that the same is not a marketable title. See also Black Hills Nat. Bank v. Kellogg, 4 S.D. 312, 56 N.W. 1071.
It matters not whether the written contract in question, or the actions or attitude of the parties with reference thereto, be construed to mean that the title was to proceed from the original grantors named, or from the plaintiff. Under either construction the plaintiff shows neither a readiness nor even an ability in the record herein to convey a marketable title or a title free from reasonable doubt. McVeety v. Harvey Mercantile Co. 24 N.D. 245, 139 N.W. 586, Ann. Cas. 1915B, 1028; Bruegger v. Cartier, 29 N.D. 575, 151 N.W. 34.
On its face, the deed delivered to the plaintiff with the name of the grantee therein blank, with no proper authorization shown to fill in the name of the grantee, was void and conveyed no title. Henniges v. Paschke, 9 N.D. 489, 81 Am. St. Rep. 588, 84 N.W. 350; Ballou v. Carter, 30 S.D. 11, 137 N.W. 603; Lund v. Thackery, 18 S.D. 113, 99 N.W. 856; Clark v. Butts, 73 Minn. 361, 76 N.W. 199; Tiffany, Real Prop. vol. 2, page 867.
The delivery of this deed, so in blank, or even with the names of the defendants therein inserted without proper authorization shown from the original grantors, would still remain, on its face, void, and would convey no title. Burns v. Lynde, 88 Mass. 305; Dal v. Fischer, 20 S.D. 426, 107 N.W. 534; Ingram v. Little, 14 Ga. 173, 58 Am. Dec. 549.
Furthermore, § 5499, Comp. Laws 1913, provides that the redelivering of a deed to the grantor or the canceling of the same does not operate to transfer the title. This statute was given effect in Russell v. Meyer, 7 N.D. 335, 340, 47 L.R.A. 637, 75 N.W. 262, by the recognition of the well-known principle of real property law that the redelivery of a deed or its cancelation by the grantee, and the issue of a new deed from the original grantor to another and subsequent grantee, does not serve to devest the title of the former grantee. What might be the rights of the parties in equity in such cases, upon principles of equitable estoppel, is another matter. Matheson v. Matheson, 139 Iowa 511, 18 L.R.A.(N.S.) 1167, 117 N.W. 755. See note in 18 L.R.A. N.S. 1170; McCleery v. Wakefield, 76 Iowa 529, 2 L.R.A. 529, 41 N.W. 210; Garland v. Wells, 15 Neb. 298, 18 N.W. 132.
The defendants are entitled to receive a title fair and legal on its face. It is clear from the record that the plaintiff has shown no ability to furnish such title from the original grantor. He has not even shown that the original grantors are willing to issue a new deed direct to the defendants. Through himself, the plaintiff cannot upon the record furnish a proper title as required. Clearly he has no legal title. Even though he did, he can furnish the same only subject to the claims and demands of judgment creditors.
Furthermore, the plaintiff's claims do not appeal to the conscience of the court. He seeks in a court of equity to gain the advantage of a business transaction which ordinarily and in course of law should be subject to the claims of judgment creditors, and to have the court protect him, as well as the defendants, against their demands, and forsooth without their knowledge of his property rights in the premises. The law demands notoriety of his title. He has sought to have it secret and hidden. Equity will not aid him in these purposes.
The judgment of the trial court is reversed with instructions to enter judgment for the defendants with costs in both courts.
BRONSON, J. (addendum) In the opinion of the court herein the following principle of law is stated: "On its face, the deed delivered to the plaintiff with the name of the grantee therein blank with no proper authorization shown to fill in the name of the grantee was void and conveyed no title."
Justice Christianson, in his concurring opinion, attempts to dissent concerning this principle and contends that such principle is not necessarily involved in this case.
In order that there may be no misunderstanding upon a possible petition for a rehearing, further views are herewith expressed in this addendum opinion to show that this principle is involved, and that this principle of law so announced is well settled, not only in this state, but by the overwhelming weight of authority, and that the same is fundamental in real property law.
Justice Christianson attacks the principle stated, and then begs the question by admitting the principle stated. He states that no one will contend that a deed without a grantee is a complete valid deed. Thereupon he proceeds to quote authorities concerning when a deed with the name of the grantee therein blank may become valid pursuant to an implied, oral, or written authority given to fill in the name of a grantee. In other words, he is attempting to assume that the principle as stated in the opinion is that a deed delivered to the plaintiff with the name of the grantee therein blank is void and conveyed no title. This is not the principle stated or asserted. His improper assumption is apparent. He does not contend, nor are any of his authorities quoted in point to demonstrate, that a deed delivered to a grantee with the name of such grantee therein blank, with no proper authorization to fill in the name of any grantee, is a valid deed on its face.
In Drury v. Foster, 2 Wall. 24, 17 L.Ed. 780, a blank in a mortgage deed by the wife was filled in by the husband, before delivery, held that parol authority was sufficient.
In White v. Vermont & M. R. Co. 21 HOW 575, 578, 16 L.Ed. 221, the subject-matter was negotiable bonds delivered in blank.
In Threadgill v. Butler, 60 Tex. 599, parol authority was shown to fill in the name of the grantee or that of any other name in a deed delivered with the name of the grantee therein blank. In that case the deed, the subject-matter of the suit, had therein named a grantee.
In Board of Education v. Hughes, 118 Minn 404, 41 L.R.A.(N.S.) 637, 136 N.W. 1095, the court quoted the well-settled...
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