Tucker v. Kanatzar

• Decision Date: 21 February 1940
• Docket Number: No. 25423.,25423.
• Citation: 373 Ill. 162,25 N.E.2d 823
• Parties: TUCKER et al. v. KANATZAR et al.
• Court: Illinois Supreme Court

373 Ill. 162

25 N.E.2d 823

TUCKER et al.

v.KANATZAR et al.

No. 25423.

Supreme Court of Illinois.

Feb. 21, 1940.

Action by George Tucker and another against Charles L. Kanatzar and others to cancel a mineral deed as a cloud on title. From a decree dismissing the complaint for want of equity, the plaintiffs appeal directly to the Supreme Court, a freehold being involved.

Reversed and remanded with directions.

SHAW, J., dissenting.Appeal from Circuit Court, Fayette County; William B. Wright, judge.

Smith & Murray, of Centralia, and Jones & Murray, of Vandalia (Matthew E. Murray, of Vandalia, of counsel), for appellants.

W. F. Sonnemann and Will P. Welker, both of Vandalia, and W. F. Schuermeyer, of Tulsa, Okl., for appellees.

GUNN, Justice.

George Tucker and Mamie Tucker filed a complaint in the circuit court of Fayette county to cancel a mineral deed to half of the oil and gas underlying 30 acres of land owned by them and which they claim constitutes a cloud upon their title. The circuit court dismissed the complaint for want of equity. Plaintiffs appeal directly to this court as a freehold is involved. Ohio Oil Co. v. Daughetee, 240 Ill. 361, 88 N.E. 818, 36 L.R.A.,N.S., 1108.

Appellants allege that the property involved was a homestead; that George Tucker was the owner of 20 acres and Mamie Tucker of 40 acres; that the tracts are contiguous and that, on September 24, appellee C. L. Kanatzar caused them to execute the deed in question; that at the time it was handed to him there was neither a description nor a grantee written in the deed and that afterwards, without authority, the name of C. R. Bennett was written in as grantee or, in the alternative, the name of Kanatzar was written in as grantee and later altered so that appellee Bennett became the grantee. Appellees filed separate answers, Bennett denying all the averments of the complaint and, in addition, says that he is an innocent purchaser for value. Kanatzar denied any change in the deed after delivery or that his name was ever in the deed, and alleges that appellants knew that Bennett was a grantee when the same was signed, acknowledged and delivered. It is also claimed that Kanatzar was disqualified to take an acknowledgment of appellants.

The evidence shows that Kanatzar was a real estate dealer engaged in the business of buying royalty. He did not buy for himself but would procure a deed made to the actual buyer and then get in communication with him and if the property and price were acceptable, deliver the deed, making the price enough so there was a profit left for him. He would then give a check for the agreed price to the seller. On September 24, 1936, Kanatzar went to the home of appellants who were living on the farm in question and agreed to give them $60 for half the minoral interest and claims that he then filled out the description in the deed, with one H. W. Davis as grantee, and that appellants both signed the deed which they acknowledged at the time. Appellants claim that there was neither the description nor the name of the grantee in the deed at that time. A receipt was given which read: ‘I Charles L. Kanatzar will pay Geo. Tucker $60 or return oil and gas contract. 9/24/36. Charles L. Kanatzar.’ Later, about October 6, Kanatzar informed appellants that the purchaserwould not accept the deed and claims that they asked him to make further search and, with the consent of appellant George Tucker, erased the name of H. W. Davis from the deed and placed therein the name of C. R. Bennett and sent it to Oklahoma with draft attached and, about October 15, obtained $90 and gave his personal check to appellants for $60.

Appellants deny this conversation ever took place and in this respect are supported, to a certain extent, by Harry and Cora Zetsche, who testify that they, at the request of appellants, demanded a return of the original deed the early part of October, and by the admission of Kanatzar that Mamie Tucker was not present when the alteration was made. The deed has been certified to this court and it is quite obvious that there is an erasure of the name of the original grantee and the name of Bennett written over it. Kanatzar does not testify he was the agent of either Bennett or appellants and the evidence clearly shows he was not a broker in any proper sense, but was in the business of obtaining mineral interests to be conveyed to the first purchaser he could find at a higher price than he had agreed to give the grantors. We believe the finding of the court that the grantee's name was on the deed when it was handed to Kanatzar is justified although he talked as if he were buying for himself, as he says, to sell to another at a profit. All the witnesses agree that the first deed was not accepted by H. W. Davis.

If Kanatzar's testimony is true he became the custodian of a deed to be delivered upon the receipt of a certain price, and when the original grantee refused to accept the conveyance it became wholly inoperative and appellants were entitled to a return of the deed under the receipt given by Kanatzar. From this point on, the transaction as it affects appellant Bennett begins. The deed was now in the hands of Kanatzar as though no grantee was named therein and before it could again become effective as a conveyance proof must be made that the grantors made a new conveyance or authorized, in a proper way, a change in the deed so as to substitute Bennett as grantee for Davis. If the name of the grantee were substituted by Kanatzar without authority, this would constitute a material...