Isler v. Isler

• Decision Date: 20 December 1915
• Docket Number: 17002
• Citation: 110 Miss. 419,70 So. 455
• Court: Mississippi Supreme Court
• Parties: ISLER v. ISLER ET AL

70 So. 455

110 Miss. 419

ISLER v. ISLER ET AL

No. 17002

Supreme Court of Mississippi

December 20, 1915

APPEAL from the chancery court of Tallahatchie county. HON. M. E DENTON, Chancellor.

Bill by Mrs. Ida D. Isler against A. V. Isler and another. From a decree for defendants dismissing the bill, complainant appeals.

Appellant was complainant In the court below, and appellees, A. V Isler and H. L. Fox, were defendants. Complainant filed her bill in the chancery court of Tallahatchie county, Miss., in which she alleged that she was a resident of the city of Memphis, Tenn., that defendant Fox was a resident of Tallahatchie county, and that defendant Isler's residence was unknown. She alleged that she and A. V. Isler had once been husband and wife, and that during the time of their married life she and her husband acquired title to a certain tract of land in Tallahatchie county, the deed being made jointly in their names. Subsequently it is shown that this land was sold to H. L. Fox for a consideration, payable in annual installments. The conveyance recited that A. V. Isler was the grantor. Ida D. Isler signed the instrument of conveyance with A. V. Isler, her husband, but A. V. Isler only acknowledged it; Mrs. Isler having failed to acknowledge it. She alleged in her bill that:

"She was induced to sign said deed, because she understood that it was necessary for her to do so in order that said deed should pass the interest of her said husband to H. L. Fox."

She claims that her husband's interest only passed, and that she still has an undivided one-half interest in the property and that her interest in the property did not pass to Fox and if it did pass, then she claims an undivided one-half interest in the purchase money and for an accounting from A V. Isler for any part of the purchase money which he may have collected. She further averred that she had been advised that Fox had reconveyed the property to A. V. Isler in settlement of the notes. A. V. Isler answered, admitting that Fox had reconveyed the land to him, and denying that Mrs. Isler had ever had any interest in the property, and that she signed the deed of her own free will and accord, and that there was no understanding that she was to share in the purchase money. He admitted that the property was held in their joint names, but alleged that it had been purchased with his own money and was in fact his property. After hearing the proof, the chancellor dismissed the bill, and complainant appeals.

Affirmed.

Dinkins & Caldwell, for appellant.

The case of Catlin v. Ware, 9 Mass. 218, 6 A. D. 56, is one of the early, and is usually referred to as one of the leading cases on the subject. In that case the question was presented as to whether or not a deed of the husband's land, signed by both husband and wife, the wife not being mentioned in the deed as a grantor, barred her right or dower in the land. Quoting from the statement of facts, i. e:

"Upon the trial the deed was produced but the demandant's appeared only after the signature of her husband, and nowhere in the deed were there any words purporting or implying a release of her dower."

Quoting next from the opinion:

"A deed cannot bind a party sealing it, unless it contains words expressive of an intention to be bound. In this case whatever may be conceived of the intention of the demandant in signing and sealing the deed, there are no words implying her intention to release her claim of dower in the lands conveyed, which must have been to give it that operation. It was merely the deed of the husband, and the wife is not barred by it of her right to dower."

We will not undertake to cite the thousands of cases holding as in Catlin v. Ware, but the line of decisions is unanimous and practically unbroken down to the present time. We will content ourselves with referring to a few special decisions that should be sufficient to satisfy the court fully as to the correctness of our contention. Fite v. Kenemer, 7 So. 920; Bank v. Rice, 4 How. U.S. 225, 11 L.Ed. 249; Harrison v. Simons, 55 Ala. 510; Madden v. Floyd, 69 Ala. 221; Bly v. Dargin, 68 Ala. 370; Davidson v. Cox, 20 So. 500; Johnson v. Goff, 22 So. 995; "Where there are no grantors there is no remedy even in equity." 10 Ohio R. 305. To the same effect see Batchelor v. Brereton, 28 Law Ed. (U.S.) 748.

The text in 13 Cyc. 540 says: "A deed signed and acknowledged by persons not named therein as grantors is not their deed, and if it is signed and sealed by two, only one of whom is described in the instrument as the grantor, it is the deed of that one only. A deed signed by a part of those named in it is good as to those signing it."

In Cornando v. Wright, 159. Cal. 610, 115 P. 227, Ann. Cas. 1912 C., 1044, which was an action to recover damages for trespass alleged to have been committed on plaintiff's land and which involved the question of the effect of a deed executed by John and Catherine McDonold, husband and wife, to the county of Sonoma, purporting to convey land to be used as a public highway, the deed was signed and acknowledged by both the husband and wife, and others, but the wife's name, who was the owner of a one-half undivided interest therein, was not mentioned in the granting clause.

The court, in the above case, reviews at some length the authorities upon the question involved, holding that the deed did not effect the interest of the wife, Catherine McDonald, who, though she signed and acknowledged it, was not mentioned in the granting clause, and citing: 13 Cyc. 621; Agricultural Bank v. Rice, supra; Batchelor v. Brereton, supra; Adams v. Medsker, 25 W.Va. 127; Harrison v. Simons, 55 Ala. 510; Gaston v. Weir, 84 Ala. 193; Johnson v. Goff, 116 Ala. 648; Peabody v. Hewett, 52 Me. 33; Cox v. Wells, 7 Blackf. (Indiana) 410; Catlin v. Ware, 9 Mass. 218; Lufkin v. Curtis, 13 Mass. 233; Merrill v. Neilson, 18 Minn. 366; Stone v. Sledge, 87 Texas 49; McFarland v. Febigers, 7 Ohio (Pt.1) 194; Bankston v. Crabtree Col. Min. Co., 95 Ky. 455.

The supreme court of Mississippi has not left us in doubt about this question but has clearly and distinctly held in the cases of Marx v. Jordan, 84 Miss. 334 and Mills-Guy Co. v. Dickerson, 94 Miss. 874, and in the recent case of Manasco v. State, 62 So. 427, that a conveyance signed by a person whose name does not appear in the granting clause is the conveyance alone of those who are described therein as grantors.

In the case of Dinkins v. Latham, 45 So. 60, (Ala.) the court expressly approves those decisions, holding that the mere signature of one to a deed who is not named in the granting clause is not the deed of such person, but holds that it is the right and duty of the court to scrutinize the instrument carefully and that if anything can be found therein indicating a purpose on the part of such signer to be bound, and, as in that case, finding that the notes, though signed alone by Mrs. Dinkins, the proper grantor, contained an endorsement upon them in writing, by the husband, that he had consented to her signature thereto. This, with the use of the word "our" in the testimonium clause and the signature of both the wife and husband thereto was held sufficient to express the husband's assent as required in the statute aforesaid. But, commenting on the other cases, Tyson, C. J. uses this language: "It would be a violation of the natural interpretation of language to interpolate another name into the enumeration merely because the name is signed at the foot of the instrument."

We will not quote further from the language of the court in that case. The reasoning is clear and satisfactory that the express consent of the husband to the signature of the notes of the wife and his signature to the instrument under the words, "Witness our hands and seal," and his acknowledgment that he signed and sealed the instrument clearly indicated an intention on his part to join therein and be bound thereby.

The only case brought to our attention in which it has been directly held that the signing and delivery of a deed by one not named therein as the grantor binds such person, is that of Sterling v. Parks, (Georgia), 58 S.E. 828, also reported in 13 L. R. A. (N. S.), 298 and 12 A. & E. Ann. Cas. 201, but in the extensive and voluminous notes in the two volumes last mentioned, it is clearly and distinctly declared that the decision is against the weight of authority.

R. L. Cannon, for appellee.

The evidence fully warranted the finding of the following fact by the chancellor: The complainant, Mrs. Ida D. Isler, appellant here, voluntarily signed and delivered the deed to H. L. Fox, intending thereby to convey to said Fox, her interest in said land. Indeed, this proposition is beyond controversy, being established by the testimony of both appellant and appellee.

The evidence fully warranted the finding of this further fact by the chancellor. Said purchase money notes executed by said H. L. Fox in payment for said land and the deed of trust securing them were given to appellee, A. V. Isler, with the free consent of appellant, and with the intention on her part that said appellee should be the sole and unconditional owner of said notes.

Notes and mortgages given to the husband with the free consent of the wife in payment for lands purchased from the wife become his property. 21 Cyc. 1300.

One who signs and delivers a deed, though not named therein as a grantor, is still bound as a grantor, and the deed is operative as a conveyance of his estate. Armstrong v Stovall, 26 Miss. 275; Sterling v. Park (Ga), 12 Ann. Cas. 201; Elliott v. Sleeper, 2 N.H. 525; Ingoldsby v. Juan, 12 Cal. 564; Hrouska v. Janke, 66 Wis. 252, 28 N.W. 166; 3 Washburn on Real Property, 2120; 1 Devlin on Deeds, sec. 204 & note; Hargis v....