Harned v. Warner

• Citation: 29 F.2d 365
• Decision Date: 17 November 1928
• Docket Number: No. 8103.,8103.
• Parties: HARNED v. WARNER.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

29 F.2d 365 (1928)

HARNED v. WARNER.

No. 8103.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1928.

William C. Dorsey, of Omaha, Neb. (H. Malcolm Baldrige, of Omaha, Neb., on the brief), for plaintiff in error.

Harry R. Ankeny, of Lincoln, Neb. (C. J. Campbell, of Lincoln, Neb., on the brief), for defendant in error.

Before BOOTH, Circuit Judge, and POLLOCK and DEWEY, District Judges.

POLLOCK, District Judge.

This action at law was instituted by plaintiff in error as plaintiff below, against defendant in error and his wife, Helen F. Warner, defendants below, to recover the purchase price of 200 acres of land situate in Jefferson county, Okl., and for improvements placed upon the land by plaintiff, by reason of breach of covenants of warranty and seizin contained in a deed of general warranty purporting to have been made to the land on October 17, 1917. The parties will be referred to as they stood on the record below.

On a trial before the court and a jury, at the conclusion of all the evidence, and on motion of defendants, the court instructed the jury to return a verdict in favor of defendants and against plaintiff, which was done. And on this verdict judgment was entered for defendants and against plaintiff, who brings error.

The sole question in the case is this: The trial court held the purported conveyance by deed of general warranty to be, under the circumstances of the case, absolutely void, and this notwithstanding the fact under it the defendants received, kept, and now hold the agreed purchase price of the land, $5,000; and, further, notwithstanding the title purporting to have passed under this conveyance to plaintiff wholly failed; and although defendants, the purported makers of said conveyance, were duly and timely notified to come in and defend the deed purporting to convey the land and wholly failed and refused to so do on the ground the conveyance as held by the trial court was absolutely null and void for want of a legal grantee.

The facts on which this finding was made and the case was determined are these: Defendants Warner claimed to own this land and wished to sell it. In order to accomplish this purpose, they signed the purported conveyance by deed of general warranty, acknowledged its execution in Nebraska, and delivered it into the hands of one Dimery to carry to Addington, Okl., with instructions to sell the land for a price not less than $5,000, and when and if a purchaser at that price could be found to fill in the name of the purchaser as grantee. In other words, as to who should become purchaser was to the makers of the deed wholly immaterial. The only condition attached to the making of the deed effective was that the grantors should receive the sum of $5,000 as purchase money for the land. As to who should pay it or who should furnish this sum, or in whose name the deed should be written as purchaser, was of no concern to the sellers of the property whatever. It is quite true the directions concerning the selling of the property were given to only one person, Dimery, who was then present in Nebraska and who was to carry the deed in blank to Oklahoma. It is further true Dimery turned this deed over to his partner in the bank, Evans, to sell the property for not less than $5,000 and he to keep all the purchase money over and above that amount as his commission or compensation. It is further true that Evans found the plaintiff as purchaser of the land, and as the purchaser did not have the ready money to make payment of the $5,500 he applied to Finerty Investment Company for a loan of $3,500 to complete the payment of the purchase price, and in making the chain of title complete in showing the title to rest in the purchaser, the plaintiff, one of the members...