Field v. Stagg

• Decision Date: 31 March 1873
• Parties: WILLIAM S. FIELD, Respondent, v. HENRY STAGG, Appellant.
• Court: Missouri Supreme Court

52 Mo. 534

WILLIAM S. FIELD, Respondent,

v.HENRY STAGG, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

P. E. Bland, for Appellant.

I. The central question in this case is, where a deed of conveyance is executed in blank as to the grantee, and then delivered in that condition to a third person, and without authority under seal from him who executed it, and in his absence such third person fills the blank and delivers the deed:--Whether such deed with its covenants is valid or void.

In this State the question is res integra--The court in passing on it will neither be enlightened nor embarrassed by any former adjudications of this court, and therefore free to follow the rule of the common law, in the light of reason and authority.

The broad and well defined distinction, taken at common law, between deeds and other instruments of writing, will not be questioned by any one. Out of this distinction comes the rule at common law, which it is apprehended no one questions, that he who executes, or makes a deed for another, must be authorized thereto by deed.

If then the filling of the blank in this deed was in its nature, essence and effect, the making of a deed for the plaintiff, it clearly comes within the rule above stated, and in order to render the deed, thus filled in, valid, it must have been authorized under seal.

The proposition appears obvious to the reason on its naked statement, that where the blank to be filled is of a nature so material, that, while it remains, the instrument is no deed, and can have no legal effect, the filling in of such blank, by whatever hand, over the signature and seal of the grantor (in conveyances) or obligor (in bonds) is essentially the making of the deed:--because it is the act which completes and gives it legal operation; for, without that, nothing passes by the instrument--no one is bound by it.

The principle is, that one person cannot bind another person, by deed in his name, without authority under seal to do so. No one will deny, that a deed of conveyance without any grantee is utterly inoperative an void--is no deed. How then is it possible to deny, that the act of inserting a grantee in such a deed, after its execution, in the absence of the grantor, is essentially, in its very nature, the act of making the deed, since it adds that, without which it was no deed. This addition may be made by the party who executed the deed, before its delivery by him, because his delivery was the completion of his acts touching the instrument, and the same power resides in him to make the addition, as to sign and seal--it is his act. If then the filling of the blank by the grantor, after the execution of the instrument, with the name of the grantee, is in such case the essential act in making the deed, and therefore makes the deed, is it less true that the same act (when duly authorized) equally makes the deed, if done by a third person or attorney?

The whole question resolves itself back, then, to this proposition, that he who fills a blank for grantee, left in a deed of another, so as to make it the valid deed of that other, in his absence, must be empowered by deed so to do. Without such power, the deed so filled up and delivered is utterly void. Viewing the question in the light of principle, there can be no doubt or difficulty in arriving at these conclusions.

But we appeal not less confidently to authority. (Hibblewhite vs. McMorine, 6 M. & W., 213-214; 1 Greenl. on Ev., § 568 a.; Note m, 1, Sharswood's Ed. of Starkie on Ev., p. 456.)

Judge Parsons gives his sanction to the rule, where he says: “If there be blanks left in a deed affecting the meaning and operation in a material way, and they are filled up after execution, there should be a re-execution, and a new acknowledgment. (2 Par. on Cont., pp. 723-4; Smith on Contracts, Am. Ed., p. 56, note 1; Cross & Bizzell vs. State Bank, 5 Pike, 531; Gilbert vs. Anthony, 1 Yer., 69; Wynn et al. vs. The Governor, Ib. 149; Lockhart vs. Roberts, 3 Bibb., 361; Bank of Limestone vs. Penick, 5 Monroe, 25; Harrison vs. Tiernan, 4 Rand., 179; Byers vs. McClannahan, 6 Gill. & John, 253-4; Perminter vs. McDaniel, 2 Hill, 267; Davenport vs. Slight, 1 Dev. & Bat., 381; McKee vs. Hicks, 2 Dev., 379; Ayres vs. Harness, 1 Ohio, 173; Pigot's case, 11 Conn., 27; Starr vs. Lyon, 5 Conn., 540.)

II. The deed as appears upon its face was not only executed by signing and sealing, but was also duly acknowledged before the proper officer, and such acknowledgment certified thereon. And the petition shows that it was so executed and acknowledged in blank; for it never returned to the parties executing and acknowledging it, after its delivery in blank to Mr Stagg.

The deed was therefore void, not only because of the mat ters above considered, but was void because of the alteration made therein after the acknowledgment.

R. E. Rombauer, for Respondent.

This deed was perfect and complete before its delivery by Stagg, the plaintiff's agent, to Boyce, and if a perfect deed before delivery, even if not perfect before execution, it is sufficient on reason, and sufficient according to the best reasoned authorities. (Duncan vs. Hodges, 4 McCord, South C., 239; Inhabitants South Berwick vs. Huntress, 53 Me., 90; McDonald et al. vs. Eggleston, Barker & Co., 26 Vt., 161, 162; Speake et al. vs. United States, 9 Cranch., 28; Smith vs. Crookes et al. 5 Mass., 538.)

In Drury vs. Foster, 2 Wall. U. S., 33--where a deed executed by a married woman in blank, and subsequently fraudulently filled up by her husband, was held void,--Judge Nelson in delivering the unanimous opinion of the court says, that, “although it was at one time doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument, the better opinion at this day is that the power is sufficient.”

The cases which hold a different doctrine will, upon examination, be found to be cases where the alteration was either made after delivery, as the case of Hibblewhite vs. McMorine, 6 Mees & W., 200, and cases cited in note e. pp. 215, 216--or cases where the blank was fraudulently filled up contrary to the intention of the grantor.

VORIES, Judge, delivered the opinion of the court.

The plaintiff was the owner of certain lots in the City of St. Louis, upon which there existed certain mortgages or deeds of trust given by plaintiff to secure the aggregate sum of over three thousand dollars. The petition in this action charges, that plaintiff contracted with defendant to sell defendant said land or lots, and to convey the same to him in consideration of an amount named and in further consideration that defendant assumed to pay and discharge the incumbrances on said lots. That after the agreements were so made, and the consideration, other than the payment of the incumbrances on the lots, paid by defendant, the defendant drew up a deed for said property containing the agreement as to the discharge of the incumbrance as aforesaid, but that in said deed the name of grantee was left blank; that defendant requested the plaintiff to execute said deed with the blank therein as aforesaid; that the plaintiff consented to so execute said deed, provided the defendant would agree to fill the blank with the name of a solvent and responsible purchaser. That the defendant so promised, and that plaintiff then executed said deed and delivered it to defendant. That defendant, in violation of his agreement, without the knowledge or consent of plaintiff, filled said blank with the name of one Peter Boyce of Arkansas, who was unknown to plaintiff, and utterly insolvent then...