Creveling v. Banta
| Decision Date | 19 March 1908 |
| Citation | 115 N.W. 598,138 Iowa 47 |
| Parties | THEODORE CREVELING, Appellant, v. M. T. BANTA ET AL.; THEODORE CREVELING, Appellant, v. M. T. BANTA ET AL.; ALEXANDER CREVELING, Appellant, v. M. T. BANTA ET AL.; ALEXANDER CREVELING, Appellant, v. M. T. BANTA ET AL |
| Court | Iowa Supreme Court |
Appeal from Decatur District Court.-- HON. H. M. TOWNER, Judge.
THE above causes were heard together, and a decree entered in the first two, by the terms of which judgment was entered in favor of Theodore Creveling against Banta in the sum of $ 1,744.41, with interest from September 4, 1904, and this established a lien superior to the claims of defendants on one hundred and ninety acres of land in dispute. A decree was entered in the last two cases in favor of Alexander Creveling and against Banta for $ 429.14, with interest from September 15, 1904, and a lien, therefore, established superior to the claims of defendants on the one hundred and twenty acres of land in controversy. The plaintiffs appeal.-- Reversed and remanded.
Reversed.
Marion F. Stookey and B. M. Russell, for appellants.
V. R McGinnis and C. W. Hoffman, for appellees.
The contracts were entered into September 21, 1898, one between Theodore Creveling and wife and M. T. Banta, who also signed the Equitable Land Company as agent, and the other between Alexander Creveling and the same parties. In that of Theodore Creveling, Banta and the company agreed to convey one thousand seven hundred and sixty acres of land in Rawlins county, Kan., to Creveling, and pay $ 2,000 difference for four hundred and eighty-nine and three-fourths acres in Decatur county, Iowa. At that time neither the company nor Banta owned or had any interest in any of the Kansas land described in the contract. Indeed the record has convinced us that no such company was in existence, and that Banta was making use of the name as an aid in effectuating his fraudulent enterprise. Knowing these conditions, Banta induced Creveling and wife, who were not advised of them, to convey to different parties to whom Banta had bargained the same two hundred and ninety-nine and one-half acres of the Decatur county land, and received therefor $ 6,500 net. Creveling still retained (1) the W. 1/2 N.E. 1/4 section 1 township 67, range 27, and the S.W. 1/4 S.E. 1/4 section 36, township 68, range 27; (2) the S. 1/2 N.E. 1/4 section 2, township 67, range 27; and (3) 10 acres in the N.W. 1/4 S.E. 1/4 of the same section. To induce them to sign the deeds to these tracts and move to Kansas, Banta represented to Creveling and wife that the deeds to one thousand four hundred and forty acres of the land there, three hundred and twenty acres having been conveyed to Mrs. Creveling, were in Rawlins County Bank ready for them upon their arrival. Banta well knew the deeds were not there, and he never procured title to such land as agreed. Three deeds to the above-described lands, however, were signed, with the consideration and name of the grantee left blank, and handed to Banta April 10, 1899. Creveling denied in the most positive manner that he even authorized Banta or any one else to fill the blanks or cancel the revenue stamps, but does testify that he signed the deeds with blanks, as stated, and handed them to Banta, under an agreement that they were to be deposited with the Commercial Bank at Lamoni, Iowa after being signed by his wife, to be left there until conveyances of the Kansas land were delivered; that he acknowledged them before the notary over the telephone. Mrs. Creveling testified that in procuring her signature to the instruments Banta agreed that the deeds should be left at the bank until the delivery of the conveyances of the Kansas land, and he would make no claim to them till then. This was on the eve of their departure to Kansas, and evidently was a ruse played by Banta to get the remainder of their land. Of course Banta denied that such was the arrangement, but the record stamps him as utterly unreliable, and, according to the Crevelings, when advised that the blanks had been filled and the deeds recorded, he expressed surprise, and charged Nicholson, the cashier of the bank, with doing this without authority. The notary testified that the deeds were signed and acknowledged before him at the bank, with authority to Banta or any one he might direct to fill in the blanks. But Banta confirms the story of the Crevelings that the instruments were not signed at the bank and were handed to him in the absence of the notary. The latter states no particulars in his deposition, and evidently was indulging in conclusions.
We are inclined to accept the Crevelings' version of this transaction. They were about to depart, and might well have thought to facilitate closing the deal by leaving these instruments at the bank in an incomplete condition pending the delivery of the conveyances which Banta represented were ready for them at Atwood, Kan. As between them and Banta then there was no delivery, for (1) possession of the deeds was obtained by fraud (Patton v. Cook, 83 Iowa 71, 48 N.W. 994, and Golden v. Hardesty, 93 Iowa 622, 61 N.W. 913); and (2) the deeds in an incomplete condition were handed to Banta to be deposited in the Commercial Bank, to be held by it until the deeds to the one thousand four hundred and forty acres of land in Kansas were delivered to Creveling.
Of course, if there had been a delivery of these deeds to a grantee named therein, or even to a person authorized to insert the name of the grantee, there might be ground for the contention that title immediately passed (McGee v. Allison, 94 Iowa 527, 63 N.W. 322), as also would there be had there been a delivery to Banta to hold in escrow; for the authorities are agreed that, where the instrument is given to the grantee to hold in escrow and to take effect upon the happening of an event, oral evidence of this condition is not admissible . But this rule is said to apply to cases only where it is intended that the conveyance shall ultimately take effect from the force of such delivery without further act upon the part of the grantor. Brackett v. Barney, 28 N.Y. 333; Hicks v. Goode, 39 Va. 479, 12 Leigh 479 (37 Am. Dec. 677); Wendlinger v. Smith, 75 Va. 309 (40 Am. Rep. 727).
But before these questions can arise there must have been a delivery. The issue as to whether an instrument has been delivered is one of fact, and primarily dependent on the intention of the grantor. The delivery is complete only when the grantor has put the instrument beyond his power to revoke or reclaim, with the intent that it shall operate as a conveyance. This intent is to be inferred from the acts or circumstances, but these must be such as to indicate a present intent to place the deed under the control of the grantee. There may be a handing over of the instrument into the manual possession of the grantee without any delivery; and, on the other hand, there may be a delivery, though the instrument remain in the control of the grantor. Babbitt v. Bennett, 68 Minn. 260 (71 N.W. 22).
It is not a question as to whether conditions were attached to a delivery, but as to whether there was a delivery at all; and surely the objection that oral evidence is not admissible on this issue because tending to contradict an instrument in writing is not pertinent, for the inquiry is not as to the terms of the contract, but whether it has become obligatory. In Sutton v. Weber, 127 Iowa 361, 101 N.W. 775, after reviewing the authorities, this court observed that "there is a clear distinction between oral testimony to vary terms of a written contract and parol testimony to show that the writing never had legal inception as a contract." In Pyn v. Campbell, 6 El. & Bl. 370, the parties signed an agreement with the understanding that it should not take effect until approved by another, and, as the latter had not approved, oral evidence to so indicate was held admissible to show the condition on the theory that it did not tend to vary the terms of a written agreement, but to prove that there was no agreement at all. The distinction is clearly drawn in Gilbert v. Insurance Co., 23 Wend. 43 (35 Am. Rep. 543):
If he (grantor) deliver it as his deed to the grantee, it will operate immediately, and without any reference to the performance of the condition, although such a result may be contrary to the express stipulation of the parties at the time of the delivery. This is one of the cases in which the law fails to give effect to the honest intention of the parties, for the reason that they have not adopted the proper legal means of accomplishing their object. But this case does not come within the rule. There was no delivery of the deed, either upon condition or otherwise, to the grantee. The agreement of the parties was, in substance that the deed should be placed in the hands of Mr. Babcock until the controversy with White should be settled, and then, and not before, the conveyances should be delivered. . . . If Babcock had been present, and the conveyances had been handed to him at that time, there would have been no question about it. And although absent, if the deed had been sent to him with the proper instructions by the hand of a third person, it could not be maintained that this would amount to a delivery to the grantee. Now, what was done in this case? The deed as well as the mortgage was left in the hands of Nottingham to be forwarded to Babcock, the depositary. It was not put into the hands of the grantee to keep, but merely as a mode of transmission to Babcock, as was well said by the judge on the trial. There was neither...
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