Garland v. Wells

• Decision Date: 02 January 1884
• Citation: 15 Neb. 298,18 N.W. 132
• Parties: GARLAND v. WELLS AND OTHERS.
• Court: Nebraska Supreme Court

15 Neb. 298

18 N.W. 132

GARLAND

v.WELLS AND OTHERS.

Supreme Court of Nebraska.

Filed January 2, 1884.

Appeal from Lancaster county.

S. J. Tuttle, for plaintiff.

W. H. Snelling, for defendants.

LAKE, C. J.

This case comes here by appeal from the district court for Lancaster county, dismissing the plaintiff's petition. The case was there heard on its merits. The action was brought by Abigail D. Smith, now deceased, to have a chain of nominal conveyances of a tract of land from her to the defendant McMurtry set aside, and the legal title thereto confirmed in herself. This relief was sought on the ground, as set out in the petition, that in the year 1872 said Smith, then living in Quincy, Illinois, having intrusted the sale of the land to one Sherwood, as her agent, then a resident of Lincoln, sent to him a deed thereof in fee, duly executed to a Mrs. Pooler, of St. Joseph, Missouri, to whom Sherwood had by contract sold it; that instead of using the deed as intended, Sherwood fraudulently erased the name of Mrs. Pooler, the grantee, from said deed, and inserted in its place that of Margaret Andrews, his mother, and thus changed had it entered of record in said county as her genuine deed; that thereupon Sherwood caused Mrs. Andrews, who took the deed without consideration, to execute two mortgages on the land as security for his own prior obligations, which were afterwards foreclosed, and the title under the decree formally passed ultimately to McMurtry.

The theory of the petition is that the deed from Mrs. Smith, because of said alteration, was absolutely void, and that the grantees under it took nothing thereby. And this doubtless would be true if the petition were sustained by the evidence. It is also alleged in the petition that McMurtry, and those under whom he claims, took the land with full knowledge of Mrs. Smith's right to it. But McMurtry, in his answer, denies that Sherwood altered said deed, and alleges the fact to be that Mrs. Smith executed the deed in blank as to a grantee, and sent it in that condition to him, with authority to insert the name of the purchaser, whoever he might be, and that he accordingly filled in the name of Mrs. Andrews, to whom he finally made the sale.

The finding of the court below on the issue being general, we do not know the precise ground of the judgment. Under the evidence, however, it might well, we think, have been that the defendants in the chain of conveyances, or some of them, at least, were entitled to protection as innocent purchasers, no alteration of Mrs. Smith's deed having been shown, or it might have been that Mrs. Smith, knowing full well the use to which Sherwood had put her deed, had, by her long silence and failure to repudiate it, acquiesced therein, and was consequently estopped from complaining. Looking to the evidence, we find that there is none to the effect that Sherwood changed the name of the grantee. Mrs. Smith herself says her “best impression is that there was no grantee named in the deed.” This is really all the light given us on this particular branch of the case, except the circumstance of a total want of evidence to show an erasure of the grantee's name. It is true that, shortly after the deed was sent to Sherwood, Mrs. Smith was informed by letters from him that he had contracted to sell the land to Mrs. Pooler, and from this she was doubtless led to believe that the deed would go to her. But there is not a particle of evidence to show that at the time the deed was executed Mrs. Smith had ever heard of Mrs. Pooler, so it is impossible that she could have intended her as the grantee. Indeed, it is reasonably certain, from all the facts and circumstances disclosed, that Mrs. Smith not only had no particular person in view, but, having full confidence in Sherwood's judgment and integrity, she left it entirely to him to select a purchaser, insert his name in the deed, and deliver it upon the terms as to price and payment she had given him. That...