Whitney v. Dewey

• Decision Date: 23 February 1905
• Citation: 10 Idaho 633,80 P. 1117
• Parties: WHITNEY v. DEWEY
• Court: Idaho Supreme Court

80 P. 1117

10 Idaho 633

WHITNEY v. DEWEY

Supreme Court of Idaho

February 23, 1905

ASSIGNMENT OF ERRORS ON APPEAL-ORDER ON MOTION FOR NEW TRIAL-EXCEPTION ALLOWED BY LAW-DELIVERY OF DEED-WHEN COMPLETE-PAROL EVIDENCE ADMISSIBLE TO SHOW DELIVERY-PAROL EVIDENCE NOT ADMISSIBLE TO ATTACH CONDITIONS TO DEED ABSOLUTE ON ITS FACE-DEEDS IN ESCROW-ESCROW CANNOT BE HELD BY GRANTEE-WRONGFUL TAKING OF DEED BY GRANTEE MAY BE RATIFIED BY GRANTOR.

1. Where a motion for a new trial has been made and the statement used on such motion contained an assignment and specification of errors, and an appeal is taken from the order denying the motion and the original brief of appellant contains no enumeration of errors relied on, but refers to the transcript and discusses such errors, and prior to the argument in the appellate court a supplemental brief is filed by appellant making a specific enumeration of such errors the same will be regarded as a substantial compliance with the rules of this court and the case will be examined on the merits.

2. Section 4427, Revised Statutes, gives to an aggrieved party an exception to the ruling of the court in granting or overruling a motion for a new trial, and on appeal from such order the appellant is entitled to have the assignment and specification of errors contained in his statement used on the hearing of such motion examined and considered by the appellate court.

3. A deed absolute on its face cannot be delivered to the grantee therein named to be by him held in escrow, and a delivery which purports to be such will operate as absolute and freed from all parol conditions, and title will vest at once.

4. It is a settled principle of law that the evidence of delivery of a deed must come from without the deed; in other words, a deed does not upon its face show delivery, and therefore parol evidence is admissible to show such fact.

5. Parol evidence is inadmissible to show that a deed delivered to the grantee and absolute on its face shall take effect only upon the performance of some condition or the happening of some contingency unexpressed therein.

6. ID.-In such case the vesting of title is determined by the legal effect of the terms of the grant and cannot be controlled by parol evidence.

7. A grantor cannot by warranty deed, absolute on its face, and free from conditions or restrictions, convey such a title to his grantee as will enable the grantee to pass a good title to a specific corporation and at the same time attach such parol conditions to the deed upon its delivery as to preclude the grantee from transferring an equally good title to any other person or corporation.

8. Where B. executes a warranty deed free from any conditions or qualifications as to the vesting of title and delivers it to the grantee, W., accompanied with a contemporaneous parol agreement to the effect that W. shall form a corporation and deed the property to such corporation and thereupon pay B $1,000 cash and deliver to B. $5,000 worth of first mortgage bonds of the corporation secured on the property so deeded and the deed was placed in the hands of the grantee to facilitate such transaction held, that the delivery was absolute and title vested at once in the grantee.

9. Even though a valid delivery of a deed had not been made at the time of its execution, still the grantor may thereafter ratify the wrongful taking of the deed by the grantee after the grantor has acquired complete knowledge of the facts of the transaction, and thereby perfect the title.

(Syllabus by the court.)

APPEAL from District Court in and for Canyon County. Honorable George H. Stewart, Judge.

Plaintiff commenced his action to quiet his title to a certain tract of land situate in the counties of Canyon and Boise, and for a perpetual injunction restraining defendant further asserting any claim in and to the property. From a judgment in favor of the plaintiff and an order denying his motion for a new trial, defendant appeals. Reversed.

Reversed and remanded. Costs awarded to appellant.

W. E Borah and N. M. Ruick, for Appellant.

Admissibility of evidence under the pleadings: We ask the court to consider, in the first place, the allegations of the complaint and certain objections made to the introduction of evidence under the pleadings. These objections go to the controlling proposition in the case--delivery of the warranty deed. They had alleged upon a written contract, alleged its violation, and they were bound by their allegations. We know of no rule of pleading and practice which will permit an allegation that a deed was delivered under the terms of a written contract and proof of the fact that it was delivered under an oral contract, when the question of delivery is not an incident but goes to the vital controversy in the case and to the very validity of the deed itself. There is an entire variance between the case alleged and the evidence offered in support of it, all of which was objected to, etc. The objection should have been sustained. (Spader v McNell, 130 Cal. 500, 62 P. 828.) The evidence must be confined to the issues made by the pleadings. (Frazier v. Ebenezer Baptist Church, 60 Kan. 404, 56 P. 752; Westchester etc. Ins. Co. v. Coverdale, 9 Kan. App. 651, 58 P. 1029.) The rule is that the allegations and proofs must correspond, and the consequence of the rule is another, which is that evidence of the matter or evidence essential to the support of the action cannot be heard unless the complaint contains an averment of said essential matter or evidence. (Maynard v. Firemen's Fund Ins. Co., 34 Cal. 48, 91 Am. Dec. 672; Stout v. Coffin, 28 Cal. 65; Cox v. McLaughlin, 63 Cal. 207.) In the case below the plaintiff alleged upon a written contract but sought to prove by parol work outside the contract, and it was held to be a variance and the evidence inadmissible. (Hinkle v. San Francisco Ry. Co., 55 Cal. 627.) All prior oral negotiations must be regarded as merged in the written contract. When an action or defense is based upon a contract not in writing and the contract appears upon the trial to be a written one, the action or defense must fail. The converse of this rule would of course be true that if the action is based upon a written contract, proof as to an oral contract is inadmissible. (Perkins Co. v. Yeoman, 23 Ind.App. 483, 55 N.E. 782; Stewart v. Cleveland etc. Ry. Co., 21 Ind.App. 218, 52 N.E. 89; Trueblood v. Shellhouse, 19 Ind.App. 91, 49 N.E. 47.) In a complaint based on a written instrument, a parol agreement is inadmissible. (Browning v. Walbrun, 45 Mo. 477; Glick v. Weatherwax, 14 Wash. 560, 45 P. 156.) Oral testimony to vary or add to written contract: There is, however, a more forcible and controlling reason why parol evidence was not admissible and could not in this case become admissible under any conditions of the pleadings. This transaction had been reduced to writing. The contract of December 26th had been completed and conclusively bound the parties. All prior negotiations were merged in this written contract, and the parties having seen proper to enter into writing that conclusively bound them, they could neither add to, change or modify the writing thus made. The only criterion of the completeness of the written contract as to a full expression of the agreement of the parties is the writing itself. If it imports on its face to be a complete expression of the whole agreement--that is, contains such language as imports a complete legal obligation--it is to be presumed that the parties here introduced into it every material item and term; and parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed. The rule forbids to add by parol when the writing is silent as well as to vary where it speaks, and the law controlling the operation of a written contract becomes a part of it and cannot be varied by parol any more than what is written. (Thompson v. Libby, 34 Minn. 374, 26 N.W. 1; Naumberg v. Young, 44 N.J.L. 333, 43 Am. Rep. 380; Hei v. Heller, 53 Wis. 415, 10 N.W. 620; Creery v. Hallery, 14 Wend. 26; Stone v. Harmon, 31 Minn. 512, 19 N.W. 88.) Where parties to an agreement have reduced it to writing, the writing is presumed to embrace the whole thereof. (Mackey v. Magnon, 12 Colo. App. 137, 54 P. 907; Ming v. Pratt, 22 Mont. 262, 56 P. 279; Judson v. Malloy, 40 Cal. 307.) Parol evidence as to the history of a written agreement is not admissible, but the written agreement itself must be taken as the only expression of the contract between the parties. (McIntosh Co. v. Rice, 13 Colo. App. 393, 58 P. 358; Irving v. Cunningham, 66 Cal. 15, 4 P. 766; Liverpool Co. v. T. M. Richardson Lumber Co., 11 Okla. 585, 69 P. 938; Fosyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S.E. 485; Hand v. Miller, 58 A.D. 126, 68 N.Y.S. 531.) Parol evidence to control legal effect of deed or postpone its operation: The plaintiff seeks to avoid the effect of this warranty deed of January 25th by showing an escrow, and this he seeks to show by parol evidence. We frankly admit that there must be assignments of error, and that without such assignments this court is not bound to consider the appeal. We therefore ask the court to recur to the transcript in this case. The specifications are set forth in detail, and we believe will be found to be unnecessarily full and complete. But in discussing the matter, the counsel for respondent ignore these assignments. They do not claim that they are insufficient, but seem to contend that, because they are not repeated in so many words in the brief, they are not sufficient. Yet the multitude of authorities cited by counsel have absolutely no relevancy except where the transcript contains no...