Lund v. Thackery

• Decision Date: 01 June 1904
• Citation: 99 N.W. 856,18 S.D. 113
• Parties: LUND v. THACKERY et al.
• Court: South Dakota Supreme Court

99 N.W. 856

18 S.D. 113

LUND v. THACKERY et al.

Supreme Court of South Dakota

June 1, 1904

Appeal from Circuit Court, Davison County.

Action by J. C. Lund against G. W. Thackery and another. From a judgment for plaintiff, defendants appeal. Reversed.

Preston & Hannett, for appellants. George W. Case, for respondent.

CORSON P. J.

In August, 1902, the defendant G. W. Thackery and wife signed and acknowledged an instrument in writing purporting to be a deed of a quarter section of land situated in Davison county in this state. No grantee was named in the instrument, nor was the consideration expressed therein. G. W. Thackery and wife were residents of the state of Illinois, and the instrument so signed and acknowledged was left in the hands of one J. W. Hunt, who also resided in that state. Hunt subsequently forwarded the instrument, with the name of the grantee and the consideration in blank, to the First National Bank of Mitchell, in this state, with directions to fill the blanks and deliver the same to J. G. Lund upon payment of the sum of $2,600. The bank at Mitchell forwarded the instrument to the Watertown State Bank, Watertown, S. D., and directed it to fill up the blanks and deliver the instrument to the said Lund upon payment of the sum mentioned. The bank at Watertown filled the blanks with the name of J. G. Lund and $2,600, and delivered the deed to him, and remitted a draft for that sum to the bank at Mitchell, with directions to retain the same until a certain mortgage appearing upon the abstract of title should be released of record, and the title shown to be free and clear of all incumbrances. The cashier of the bank at Mitchell thereupon placed the proceeds of the draft to his own credit, in whose name it still stands on the books of the bank. On the 9th day of September, the day the bank at Mitchell forwarded the deed to Watertown, it received a telegram from G. W. Thackery requesting the bank to return the deed to him. Thackery refused to satisfy one of the mortgages, for about $300, outstanding against the property and claimed that neither Hunt nor either bank had any right to fill up the blanks and deliver the deed, and on September 15th he conveyed the property to his brother Amos Thackery by deed. Thereupon this action was instituted by the plaintiff to cancel of record the said deed so made by G. W. Thackery to his brother Amos Thackery. The case was tried to the court without a jury, and, its findings of fact and conclusions of law being in favor of the plaintiff, judgment was entered canceling the deed to Amos Thackery; and from the judgment, and order denying a new trial, the defendants have appealed.

It is contended by the appellants that an instrument in writing purporting to convey land, executed and acknowledged by the grantor, in which the name of the grantee is not inserted, is absolutely void, and conveys no title, and that, under the Code of this state, an agent not having authority in writing is not authorized to insert the name of a grantee therein and that Hunt, therefore, who received this deed from the grantor with no name of a grantee therein, was not authorized to insert such name, and that he could confer no authority upon either the bank at Mitchell or the bank at Watertown to insert the name of a grantee and deliver the deed to the person so named, where the grantee whose name is inserted in the deed had full knowledge of all the facts in the case. The authorities quite generally agree upon the proposition that such an instrument is invalid for any purpose until the name of a grantee is inserted therein. But as to whether or not an agent may be authorized by parol to fill the blank, the decisions are not in harmony. Section 938 of our Civil Code provides: "An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing." It will be observed the language is "or by his agent thereunto authorized by writing." This section is a copy of the proposed Civil Code of New York (section 483), and also of section 1091 of the Civil Code of California. In Upton v Archer, 41 Cal. 85, 10 Am. Rep. 266, the Supreme Court of that state held, "A deed in due form, signed and acknowledged by the grantor, does not become his deed until the name of a grantee is inserted therein, and an agent of the grantor cannot insert the name of a grantee in the absence of the grantor unless his authority is in writing;" and in the opinion the court said: "When that instrument was left with Webster by the plaintiff, it was not his deed, for the obvious reason that there was only one party to it. No one could convert it into his deed except the plaintiff himself, or some one by him thereto duly authorized; and as it could not become the plaintiff's deed until the name of a grantee was inserted, that act could not be performed by an agent, in the absence of the plaintiff, unless his authority was in writing." In Wunderlin v. Cadogan, 50 Cal. 613, the law as laid down in the former case seems, in effect, to be approved by the court. In the latter case the court says: "At the time that the latter conveyance was made, the legal title was in the grantors, for the...