Steffy v. Esler

• Decision Date: 22 November 1898
• Parties: STEFFY v. ESLER
• Court: Idaho Supreme Court

55 P. 239

6 Idaho 228

STEFFY v. ESLER

Supreme Court of Idaho

November 22, 1898

DEED TO MINING PROPERTY-CONSIDERATION-CANCELLATION OF DEED.-Where S executed and delivered to E. a deed of a one-fourth interest in certain mining property for the consideration of E. paying certain indebtedness contracted by E. and S. in working of such property as copartners, and also a certain note and mortgage executed by S. and the release of S. from any and all liability upon such indebtedness, and it was understood and agreed by and between said parties that said deed was not to become operative or to pass title until such payment had been made by E., held, that on the refusal of E. to make said payments or comply with said conditions, S. was entitled to have such deed canceled.

APPEAL-STATEMENT ON MOTION FOR NEW TRIAL.-Under section 4818, Revised Statutes of Idaho, providing that any statement used on motion for a new trial may be considered on an appeal from a final judgment, what purports to be a statement on motion for new trial cannot be considered, it not appearing that any motion for a new trial was made.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Affirmed, with costs.

John R McBride, for Appellant.

A deed in escrow is a familiar transaction, but a deed regularly made, acknowledged and delivered by the grantor to the grantee, and yet not a deed, would certainly be a most remarkable transaction between two business men dealing with valuable property. There is no fraud alleged or claimed, but a deed is made and delivered which on its face bears no evidence of any condition precedent or subsequent, and yet the party declares it was no deed in fact. An attempt to defeat the most solemn act a man may do, by parol evidence that it was never what it purported to be, with no pretense of any fraud practiced upon him, is certainly an anomalous claim. (Devlin on Deeds, sec. 976.) The engrafting of a contemporaneous condition on a deed in a proper action will be allowed only on clear evidence of fraud, accident or mistake. (Wharton on Evidence, sec. 1050; Wallace v Baker, 1 Binn. 610; Marshalltown High School v. Iowa Synod, 28 Iowa 360; Galveston etc. Ry. Co. v. Pfeuffer, 56 Tex. 66; East Line R. R. Co. v. Garrett, 52 Tex. 133.)

Charles L. Heitman, for Respondent.

This suit is brought for the purpose of procuring the cancellation of a deed which is set forth in the pleadings herein. The issue is between the original parties to the deed. The contention of the respondent is, that the deed covering the property in controversy was never in fact delivered as a present contract unconditionally binding upon the respondent according to its terms from the time of such delivery, but was left in the hands of the appellant to become absolute in the event of the appellant doing certain things, to wit, paying certain debts and sums of money as set forth in the complaint. In other words, the deed upon which this suit is based was not, except in a named contingency, to become a contract or a deed absolute. In support of this contention respondent relies upon the case of Burke v. Dulaney, 153 U.S. 229-239, 14 S.Ct. 816. (Ware v. Allen, 128 U.S. 590, 9 S.Ct. 174; Juilliard v. Chaffee, 92 N.Y. 529, 535; Reynolds v. Robinson, 110 N.Y. 654, 18 N.E. 127; McFarland v. Sikes, 54 Conn. 250; Wiard v. Brown, 59 Cal. 194, 1 Am. St. Rep, 111, 7 A. 408; Roundtree v. Smith, 152 Ill. 493, 38 N.E. 680; 2 Devlin on Deeds, sec. 822.)

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

This is an appeal from a judgment rendered by the district court for the county of Kootenai. Notice of intention to move for a new trial was filed and served, but no motion for a new trial was ever made or passed upon by the court. The record contains what purports to be a statement on motion for a new trial but, as no motion for a new trial was ever made or passed upon by the court, such statement cannot be used on this appeal. Section 4818 of the Revised Statutes of Idaho provides: "Any statement used on motion for a new trial or settled after decision of such motion, when the motion is made upon the minutes of the court, as provided in section 4443, or any bill of exceptions settled, as provided in sections 4429 or 4430, or used on motion for a new trial, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing the new trial." The language of the...