May v. Emerson

CourtSupreme Court of Oregon
Writing for the Court[52 Or. 270] EAKIN, J.
Citation52 Or. 262,96 P. 1065
PartiesMAY v. EMERSON.
Decision Date18 August 1908

96 P. 1065

52 Or. 262


Supreme Court of Oregon

August 18, 1908

On motion for rehearing. Denied.

For former opinion, see 96 P. 454.

[52 Or. 264] F.M. Saxton, for appellant.

Gustave Anderson, for respondent.

[52 Or. 270] EAKIN, J.

By this motion the defendant questions the applicability of the authorities relied upon in the opinion, and, therefore, the correctness of the decision. All these authorities recognize the law as quoted in the opinion from Prutsman v. Baker, 30 Wis. 644, 11 Am.Rep. 592, and many of them state it at length; and, although none of them involves the identical question here considered, each involves the principle of law and differentiates the case under consideration. They all agree that the fiction by which the title relates back from the first delivery of the deed to the depositary applies only in cases of necessity to avoid an injury to the operation of the deed from events happening after the first delivery; and the only instances mentioned are such as a grantor, being a feme sole, who afterwards marries, or, whether a feme sole or not, dies, or is otherwise rendered incapable of executing the deed at the date of the second delivery. This distinction is made plain in the authorities cited, and also in 16 Cyc. 588. But there can be no pretense here of a necessity that the deed should take effect by relation after the first delivery. Defendant's rights cannot be prejudiced thereby, as is clearly shown in the opinion. On the contrary, to give it that effect, an injury would result to the creditor.

By the motion stress is laid upon the fact that the purchase money is to be paid to Hughes, and not to defendant; but Hughes has no interest. He is the agent of Dugan, and, so far as this record is concerned, the situation is the same as if the money was to be paid to Dugan. McDonald v. Huff, 77 Cal. 279, 19 P. 499, and Conneau v. Geis, 73 Cal. 176, 14 P. 580, 2 Am.St.Rep. 785, cited by the motion, were both cases where a second deed was made by the grantor after [52 Or. 271] the fulfillment of the escrow agreement, and therefore he had no interest, but held the naked title; and they are not in point. Cannon v. Handley, 72 Cal. 133, 13 P. 315, holds that the second grantee takes the legal title, but subject to the equity of the vendee, and supports the opinion. Another case cited in the motion is within the recognized exception, namely, a case of the death of the grantor. In Nolan v. Otney, 75...

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