Wier v. Batdorf

• Decision Date: 24 April 1888
• Citation: 38 N.W. 22,24 Neb. 83
• Parties: MICHAEL WIER, APPELLANT, v. HENRY BATDORF ET AL., APPELLEES
• Court: Nebraska Supreme Court

38 N.W. 22

24 Neb. 83

MICHAEL WIER, APPELLANT, v. HENRY BATDORF ET AL., APPELLEES

Supreme Court of Nebraska

April 24, 1888

APPEAL from the district court for Douglas county. Tried below before NEVILLE, J.

AFFIRMED.

James W. Savage, for appellant, cited: Campbell v. Thomas, 42 Wis. 441. Thayer v. Luce, 22 O. St., 62. Drury v. Young, 58 Md. 546. McWilliams v Lawless, 15 Neb. 135. Raybold v. Raybold, 20 Pa. 308. Bailey v. Sweeting, 9 C. B. N. S., 843. Argus v. Mayor, 55 N.Y. 495. Clark v Gifford, 10 Wend. 310. Brittain v. Work, 13 Neb. 347.

John C Cowin and George B. Lake, for appellees, cited: Comer v. Baldwin, 16 Minn. 172. Prutsman v. Baker, 30 Wis. 644. Parker v. Parker, 1 Gray 409. Campbell v. Thomas, 42 Wis. 437.

OPINION

MAXWELL, J.

This is an appeal from a decree in equity.

The first paragraph in the petition is as follows: "The plaintiff complains of the defendants, Henry Batdorf and Lovenia Batdorf, for that, on or about the first day of November, 1882, the said defendant, Henry Batdorf, being the owner in fee of the following described premises, viz.: The east half of the north-east quarter and the east half of the south-east quarter in section 35, township 16, range 12, in Douglas county, Nebraska, on the said day sold the same to the plaintiff for the sum of $ 4,160, payment as follows: $ 2,000 to be paid down in cash on the 4th day of November, 1882, the balance to be in three equal payments, notes to be given secured by mortgage on said premises, and to become due in one, two, and three years thereafter; that thereupon said defendants, Henry Batdorf and his wife, Lovenia Batdorf, executed their warranty deed in due form, duly acknowledged, for said premises, and delivered the same in escrow to the defendants, Jones and Emory, who were their agents, to deliver to this plaintiff on the 4th day of November, 1882, upon the payment of two thousand dollars and the delivery to said Jones and Emory of the said notes and mortgage."

There are other allegations in the petition, as to the execution of certain notes and a mortgage by the plaintiff, ready for delivery to the defendants. There is also an averment of performance and of readiness to perform.

The defendants, in their answer, deny the existence of any contract for the sale of the real estate in controversy, and that the deed in question was delivered to Jones and Emory as an escrow.

On the trial of the cause the court found the issues in favor of the defendants, and dismissed the action. The plaintiff appeals.

The testimony tends to show that about the month of October, 1882, the defendants placed the land in controversy in the hands of Jones and Emory to find a purchaser for the same. These agents had no authority to sell, but were to consult their principals. About the last day of October, 1882, the plaintiff made a verbal offer of a specified sum for the land in question. This was communicated verbally by Mr. Jones to Henry Batdorf, and by him verbally agreed to. On the first day of November, 1882, Batdorf and wife went to the office of Jones and Emory, where a deed was prepared for them to sign. They were thereupon advised by Mr. Emory to go to a certain notary and acknowledge the deed. This they did. Henry Batdorf then took the deed and returned to the office of Jones and Emory, but retained the deed in his possession. In the meantime the plaintiff had executed a mortgage upon the land in question, with certain notes for the defendants. These were in the plaintiff's possession. The testimony shows that the plaintiff was to pay $ 2,000 in cash at the time of the delivery of the deed. Instead of cash, however, he offered a certificate of deposit on a bank in the eastern part of Iowa for the sum of $ 2,000. This Batdorf refused to receive. A friend of the plaintiff thereupon went to a bank in the city of Omaha to get the money, but returned soon afterwards, saying they would have to wait for the collection of the certificate. These transactions took place on Tuesday, and as it was apparent that the money could not be paid at that time, it seems to have been verbally agreed by all parties to wait until noon of the next Saturday, at which time the money would be paid. Before noon on Saturday the defendant, Batdorf, went to the office of his agents, Jones and Emory, and asked to see the deed, and upon receiving it put it in his pocket. This Mr. Emory resisted, when the deed was returned to him, but the defendant declared that the contract "was off." At 12 o'clock, however, on Saturday, he went to Jones and Emory's office, but there was no tender of the money. Just before 2 o'clock P.M. on that day, Mr. Cannon, a friend of the plaintiff, went to a bank in Omaha and procured $ 2,000. Whether this was obtained from the certificate heretofore referred to does not appear, but we are led to infer that it was not. The proof as to tender of the $ 2,000 thus obtained is conflicting, and in any event is not material. The question presented is, whether the execution of these papers without any delivery would take the case out of the statute of frauds.

The action is based upon the delivery of the deed in escrow to Jones and Emory. A delivery in escrow is the delivery of the deed to a stranger with the direction that he shall deliver to the grantee upon the fulfillment by the latter of some condition, as the payment of a sum of money, the performance of some obligation, or upon the happening of some event, the grantor reserving the right to reclaim the deed if the condition is not fulfilled or the event does not happen. A delivery in escrow can be made only to a stranger, and until the condition be performed and that deed delivered over, the estate does not pass, but remains in the grantor. 4 Kent Com., 454. Smith v. Bank, 32 Vt. 341. Hinman v. Booth, 21 Wend. 267. Worrall v. Munn, 5 N.Y. 229. Patrick v. McCormick, 10 Neb. 1, 4 N.W. 312. Jones and Emory were the defendant's own agents, and could not hold the deed in escrow, and in any event the testimony fails to show authority in them to receive the money and deliver the deed. The deed, therefore, was not delivered in escrow.

2. Do the writings taken together constitute a sufficient memorandum to take the case out of the statute of frauds?

The plaintiff cites the case of Thayer v. Luce, 22 Ohio St. 62, to sustain the position that such writings are sufficient. In that case there was a memorandum as follows: "L. T. Thayer is to clear off the present mortgage within ninety days. At that time J. W. F. is to give him mortgage for amount unpaid, with interest from date of sale. ...