Prosser v. Nickolay

• Decision Date: 22 June 1946
• Parties: PROSSER et al. v. NICKOLAY.
• Court: Wisconsin Supreme Court

249 Wis. 75

23 N.W.2d 403

PROSSER et al.

v.NICKOLAY.

Supreme Court of Wisconsin.

June 22, 1946.

Appeal from a judgment of the Circuit Court for Outagamie County; Joseph R. McCarthy, Judge.

Affirmed.Action commenced April 9, 1945, to set aside a conveyance. From a judgment dismissing their complaint, plaintiffs appeal.

On October 11, 1944, Jacob Nickolay caused Michael Burns, an attorney residing at Seymour, to be called to his home. He instructed Mr. Burns to prepare a deed conveying certain property to his wife, Walburga Nickolay. Mr. Burns prepared the deed and it was executed by Mr. Nickolay at his home in the presence of Mr. Burns and Hattie Marien, who subscribed their names as witnesses. Mr. Burns took the acknowledgment as a notary public. There was no consideration other than love and affection.

At the time the instrument was executed and acknowledged it contained no description of the property intended to be conveyed. The legal description of the premises was not available and the grantor desired to execute the deed at that time. He was in failing health and apparently feared that if the matter were deferred, his death might intervene. He instructed Mr. Burns to procure the proper description and insert it in the instrument, cause it to be recorded and deliver it to the grantee. Mr. Burns took the deed to his office and inserted the description in it on October 13, 1944. Four days later the grantor died. Shortly thereafter the deed was recorded and delivered to Walburga Nickolay.

This action is brought by Chas. R. Prosser and T. A. Nickodem, as executors of the will of the grantor, and John Nickolay, as a beneficiary under the will.

Benton, Bosser, Becker & Parnell, of Appleton (David L. Fulton, of Appleton, of counsel), for appellants.

Bradford & Derber, of Appleton, for respondent.

RECTOR, Justice.

The appellants submit two contentions against the validity of the conveyance: (1) The execution of the instrument was a nullity in that no description was contained therein at the time and could not thereafter be inserted pursuant to parol authority; (2) there was no valid delivery prior to the grantor's death.

In support of their first contention the appellants cite an imposing array of authorities. They are from other jurisdictions, however, and are not in accord with the rule in this state. Our cases hold that parol authority may be given to complete a conveyance by later inserting a material portion omitted at the time of execution and acknowledgment, and that when it is inserted no further execution is required. Friend v. Yahr, 1905, 126 Wis. 291, 104 N.W. 997, 1 L.R.A.,N.S., 891, 110 Am.St.Rep. 924;Van Etta v. Evenson, 1871, 28 Wis. 33, 9 Am.Rep. 486.

Our decisions likewise dispose of the second contention. It is clearly established that a deed delivered to a third person with instructions to record it and deliver it to the grantee after the...