Gardiner v. Gardiner

Citation214 P. 219,36 Idaho 664
PartiesJOCELYN O. GARDINER, ROSEMARY GARDINER, JAMES T. GARDINER, Jr., JOHN R. GARDINER, and MABEL E. GARDINER, Minors by Their Guardian ad Litem, A. A. FARIS, Respondents, v. JAMES T. GARDINER, Sr., Appellant
Decision Date23 February 1923
CourtUnited States State Supreme Court of Idaho

QUIETING TITLE-UNRECORDED DEED-LATER DEED RECORDED BUT WITHOUT VALUABLE CONSIDERATION-WRITTEN AGREEMENT SIGNED BY ONE PARTY-ACCEPTANCE BY OTHER-DELIVERY OF DEED IN ESCROW-FULFILMENT OF CONDITIONS-TAKING EFFECT OF DEED-CONDITION REDUCED TO WRITING - ORAL AGREEMENT PRESCRIBING OTHER CONDITIONS INADMISSIBLE.

1. If a deed takes effect it is not affected by the subsequent delivering and recording of a deed to another party without a valuable consideration.

2. A memorandum of agreement, signed by one party only, binds the other party and becomes a valid agreement if he accepts the writing.

3. Where a deed is delivered in escrow with an agreement that it shall take effect upon the fulfilment of certain conditions by the grantee, it takes effect when these conditions are fulfiled, even though actual delivery has not been made to the grantee.

4. Where one of the conditions of an escrow agreement is a joint request for the delivery of the deed by the grantee and another party, a conveyance to the grantee of the interest of such other party obviates the necessity of a request by the latter.

5. Where a written escrow agreement sets forth the conditions upon which a deed shall be delivered, it will be deemed to contain the entire agreement, and a prior or contemporaneous oral agreement prescribing different or additional conditions is not admissible.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to quiet title, with cross-complaint. Judgment for plaintiffs. Reversed.

Reversed and remanded. Costs awarded to appellant.

J. T Pence, for Appellant.

Second sale not valid where no consideration paid. (39 Cyc. 1241; 13 Cyc. 736; Burrage v. Beardsley, 16 Ohio 438, 17 Am Dec. 382; Stephenson v. Deuel, 125 Cal. 656, 58 P 258; Ten Eyck v. Witbeck, 135 N.Y. 40, 31 Am. St. 815, 31 N.E. 994; Evans v. Templeton, 69 Tex. 375, 5 Am. St. 71, 6 S.W. 843; Blanchard v. Tyler, 12 Mich. 339, 86 Am. Dec. 57.)

Deeds constructively delivered. (21 C. J. 888; Cannon v. Hadley, 72 Cal. 133, 13 P. 318; Shirley v. Ayres, 14 Ohio 307, 45 Am. Dec. 546; Gammon v. Bunnell, 22 Utah 421, 64 P. 958; Davis v. Clark, 58 Kan. 100, 48 P. 563; State Bank v. Evans, 15 N.J.L. 155, 28 Am. Dec. 400; Gudd v. Althouse, 71 Kan. 604, 81 P. 172; Neal v. Owings, 108 Kan. 73, 194 P. 324.)

Cannot vary terms of deed by proof of oral agreement. (Fralick v. Mercer, 27 Idaho 360, 148 P. 906; Newmyer v. Roush, 21 Idaho 106, Ann. Cas. 1913D, 433, 120 P. 464; 22 C. J. 1121, 1122; Skinner v. Hendrick, 1 Root (Conn.), 253, 1 Am. Dec. 43; Green v. Consolidated Wagon etc. Co., 30 Idaho 359, 164 P. 1016; Irvin v. Irvin, 142 Pa. 271, 21 A. 816; Cox v. Reed, 113 Miss. 488, 11 A. L. R. 5, 74 So. 330; 3 Jones on Evidence, sec. 454; Mann v. Brady, 80 Okl, 299, 196 P. 346; Shannon v. Prall, 115 Wash. 106, 196 P. 635; Lamb v. Otto, 51 Cal.App. 433, 197 P. 147; Vaughn v. Smith, 82 Okla. 244, 195 P. 754; Samuelson v. Palmer, 96 Kan. 587, 152 P. 627; People v. Orekar, 22 N.M. 307, 161 P. 1110; Spaulding v. Howard (Okl.), 152 P. 106; McGehee v. Curran, 49 Cal.App. 186, 193 P. 277; Whitney v. Dewey, 10 Idaho 633, 80 P. 1117, 69 L. R. A. 572; Elliott on Evidence, sec. 578; Jacobs v. Shenon, 3 Idaho 274, 29 P. 44; Froman v. Madden, 13 Idaho 138; C. S., secs. 7974, 7976, 8476.)

"An agreement in writing which is neither ambiguous nor uncertain and expresses all the conditions on which a note is held in escrow, cannot be varied nor contradicted by proof of a contemporaneous oral agreement where it is clear that the writing was intended to define and fix the rights and liabilities of the parties." (Pacific Nat. Bank v. San Francisco, 23 Wash. 425, 63 P. 207.)

"Thus where the parties have deliberately put their engagements in writing in such terms as to import a legal obligation without any uncertainty as to the object or extent of such engagements, the writing is presumed to contain the entire contract and all the prior and contemporaneous negotiations are merged therein and cannot be shown by parol evidence." (Elliott on Evidence, sec. 570.)

S. L. Tipton and Walter Griffiths, for Respondents.

No estate vested in the defendant Gardiner and Rose B. Gardiner by the deed placed in escrow bearing date of October 17, 1918. (C. S., sec. 5381; secs. 1057, 1110, Kerr's Civ. Code Cal.)

There could be no estate in Gardiner until all of the conditions of the escrow agreement were performed. (Devlin on Deeds, sec. 321; Been v. McKueick, 10 Cal. 538; Dyson v. Bradshaw, 23 Cal. 528; Smith v. South Royalton Bank, 32 Vt. 341, 76 Am. Dec. 179; Dixon v. Bristol Savings Bank, 102 Ga. 461, 66 Am. St. 193, 31 S.E. 96.)

"Parol evidence is admissible to show other conditions than those contained in the writing." (Manning v. Foster, 49 Wash. 541, 96 P. 223, 18 L. R. A., N. S., 337, and note; Fred v. Fred (N. J. Ch.), 50 A. 776; Diekman v. Arnold, 71 Mich. 656, 40 N.W. 42; Golden v. Meier, 129 Wis. 14, 116 Am. St. 935, 107 N.W. 27; Bowers v. Cottrell, 15 Idaho 221, 96 P. 936; McCormick Harvester Co. v. Morlan, 121 Iowa 451, 96 N.W. 976; 3 Jones on Evidence, sec. 471, 477; Ware v. Allen, 128 U.S. 590, 9 S.Ct. 174, 32 L.Ed. 563; Hulburt v. Dusenberry, 26 Colo. 240, 57 P. 860; Burke v. Dulaney, 153 U.S. 228, 14 S.Ct. 816, 39 L.Ed. 698; Hartford Fire Ins. Co. v. Wilson, 187 U.S. 467, 23 S.Ct. 189, 47 L.Ed. 261.)

"The conditions upon which a deed is delivered in escrow may be partly in writing and in part oral." (Stanton v. Miller, 58 N.Y. 192; Manning v. Foster, supra; Golden v. Meier, supra; Gaston v. City of Portland, 16 Ore. 255, 19 P. 127.)

MCCARTHY, J. Dunn and William A. Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an action brought by respondents through their guardian ad litem to quiet their title to 80 acres of land. Appellant, in addition to his answer, filed a cross-complaint in which he seeks to quiet his title to the same land. Respondent and Rose B. Gardiner were husband and wife. They were endeavoring to divide the community property. Respondents are their minor children. Mary O'Roke is the mother of Rose B. Gardiner and grandmother of respondents. On October 17, 1918, Mary O'Roke executed and acknowledged a warranty deed to the 80 acres in question to appellant, reciting a consideration of $ 855, and deposited the same in escrow with the Boise City National Bank in an envelope on the outside of which was indorsed the following escrow agreement, to wit:

"ESCROW AGREEMENT.

"Boise City National Bank.

"This envelope contains a deed from Mary O'Roke, a widow, grantor to James T. Gardiner and Rose B. Gardiner, grantees. It is to be delivered to the grantees upon two conditions which are as follows:

"First: That James T. Gardiner on or before March 1, 1919 deposit to the credit of Mary O'Roke in your bank the sum of $ 855.00.

"Secondly: That after said deposit is made said James T. Gardiner and Rose B. Gardiner, shall jointly request the delivery of said deed to them and shall receipt you for the same.

"If said deposit is made as above provided then you are to hold said deed until the delivery thereof is jointly requested by the grantees.

"Dated this 17th day of Oct. 1918.

"MARY O'ROKE."

Appellant complied with the first condition of the escrow agreement by paying Mrs. O'Roke the $ 855 on November 4, 1918. About May 8, 1919, Rose B. Gardiner executed and acknowledged a warranty deed conveying to appellant all her interest in the said 80 acres and deposited it in escrow with Martin and Martin, attorneys at Boise, Idaho, with directions to deliver it to appellant when final proof was made on the land. In the fall of 1919 final proof was made. Appellant and Rose B. Gardiner were living apart at the time, and the execution and delivery of this deed was a part of an attempted settlement of their property rights. On February 10, 1920, after the $ 855 had been accepted by Mrs. O'Roke, after Rose B. Gardiner had deposited in escrow her deed conveying her interest to appellant, and, the condition of that escrow had been fulfilled, Mrs. O'Roke executed and delivered to respondents, with no consideration other than love and affection, a deed to the land in controversy, which was duly recorded. From a judgment for respondents, quieting title to the 80 acres in them, as against appellant, this appeal is taken. Among the many assignments of error the principal ones, and the only ones which we need mention, are that the court erred: (1) in finding that the deed from Mary O'Roke conveyed title to the property to respondents and in rendering judgment quieting that title, (2) in finding and decreeing that appellant has no title to the land, (3) in admitting evidence of an oral agreement varying and adding to the written escrow agreement.

The fact that appellant did not obtain actual possession of the deed and record it, before respondents' deed was recorded, does not invalidate the conveyance to him.

"Sec. 5424. Every conveyance of real property other than a lease for term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded." (C. S., sec. 5424.)

The only consideration for respondents' deed was love and affection. While this is a good consideration, it is not a valuable consideration within the meaning of the statute. Nothing passes under a deed without valuable consideration, if the grantor has theretofore...

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