Matteson v. Smith
| Decision Date | 22 May 1901 |
| Citation | 61 Neb. 761,86 N.W. 472 |
| Parties | MATTESON ET AL. v. SMITH ET AL. |
| Court | Nebraska Supreme Court |
1. A deed or other similar instrument placed in the hands of a third person for delivery to the grantee when he shall perform some condition is not legally effective, but it is a mere nullity, if delivered by the depositary, or obtained from him in any way, without full compliance with the condition specified.
2. Evidence examined, and found to warrant a judgment enjoining the registration of a mortgage release claimed to have been delivered as an escrow.
Appeal from district court, Clay county; Hastings, Judge.
Action by Fred C. Matteson and another against W. B. Smith and others. Judgment for plaintiffs. Defendants appeal. Affirmed.Hurd & Spanogle and S. W. Christy, for appellants.
Thomas H. Matters, for appellees.
This action was instituted in the district court of Clay county by Fred C. Matteson, trustee, and the Sutton National Bank, to prevent the registration of a formal certificate acknowledging satisfaction of a real-estate mortgage, and for other relief. The plaintiffs obtained judgment below in accordance with the prayer of their petition, and the case was then brought here for review by appeal. The one controlling question in the case is whether the delivery by Matteson to Schaeffle of a mortgage release was absolute or only conditional. This is a question of fact, and not of law. The trial court found that the instrument was delivered as an escrow, and the finding is, in our opinion, fully sustained by the evidence. Authorities need not be cited to show that a deed placed in the hands of a third person for delivery to the grantee when he shall perform some condition is not legally effective, but is a mere nullity, if delivered by the depositary, or obtained from him in any way, without full compliance with the condition specified. The release in question was stillborn, and its registration was properly enjoined. The judgment is affirmed.
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Schmidt v. Musson
...the condition is performed and the deed delivered over the estate does not pass but remains in the grantor.” In the later case of Matteson v. Smith, 61 Neb. 761, the same learned court “Authorities need not be cited to show that a deed placed in the hands of a third person for delivery to t......
- Matteson v. Smith