Jones v. Rocky Cliff Coal Mining Co.

OPINION OF TPIE COURT. BRICE, District Judge (after stating the facts as above). [1] Many assignments of error are advanced in this court, but it will be unnecessary to consider them separately. If there was error in the admission of testimony, -it was harmless, as will be seen from the view we take of the case. At the time the quitclaim deed was made to ap-pellee, the title was in the grantors named in that deed, for until some name was inserted as grantee in the original deed it was ineffective as a conveyance. “The deed in blank passed no interest, for it had no grantee. The blank intended for the name of the grantee was never filled, and until filled the deed had no operation as a conveyance. * * * There are two conditions essential to make a deed thus executed in blank operate as a conveyance of the property described in it; the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named.” Allen v. Withrow, 110 U. S. 128, 3 Sup. Ct. 523, 28 L. Ed. 90. Even though the deed was delivered to the corporation, and it had implied authority to fill in its. name as grantee, following the rule of some courts (1 Dev. on Real Estate [3d Ed.] § 457), there is no evidence from which the court could infer the corporation authorized its name to be inserted as grantee in the deed. But assuming that the corporation did authorize Canavan to authorize Bushman to fill in its name as grantee in the deed, at the time this was done the appellee had obtained title through the quitclaim deed from the Wilsons. Mabie-Lowrey Hdwre. Co. v. Ross et al. (26 N .M. 51), 189 Pac. 42. The consideration of $1 given for the quitclaim deed is sufficient consideration to pass title, unless it was made in bad faith. 2 Dev. on Real Estate (3d Ed.) §§ 813, 814. Whether or not a purely nominal consideration is a sufficient protection of a bona fide purchaser against a holder of an unrecorded deed is not necessary to- determine (Ten Eyck v. Witbeck, 135 N. Y. 40, 31 N. E. 994, 31 Am. St. Rep. 809) ; for it is our conclusion that, at least until the grantee’s name had been inserted in the original deed, the title remained in the Wilsons, for the deed was ineffective until some grantee was named therein. Allen v. Withrow, supra.; Board of Education v. Hughes, 118 Minn. 404, 136 N. W. 1095, 41 L. R. A. (N. S.) 637. The deed under which appellant claims being ineffective as a conveyance at the time of the execution and delivery of the deed to appellee, and she having no knowldge of any interests of the appellant in the property, the quitclaim deed conveyed a good title. Courts have long disagreed over the construction of deeds executed without a grantee being named therein. Some hold that such a deed is absolutely void; others that an agent duly authorized in writing only could fill in the name of the grantee; others that parol authority could be given, but the grantee’s name must be written in before delivery; others that such parol authority could be exercised after delivery ; others that the delivery of such a deed would carry with it implied authority for the intended grantee to fill in his own name as grantee at any time. The most extreme cases are to the effect that when such deed is duly executed and delivered to the intended grantee, who long thereafter held the property in actual, open, adverse possession, that such possession coupled with tfye deed was effective in passing title, although the name of grantee was never supplied. The following authorities contain the several views of the courts on the subject: Barden et al. v. Grace et al., 167 Ala. 453, 52 South. 425, Ann. Cas. 1912A, 537 and note at page 538; Allen v. Withrow, 110 U. S. 128, 3 Sup. Ct. 517, 28 L. Ed. 90; Montgomery v. Dresher, 90 Neb. 632, 134 N. W. 251, 38 L. R. A. (N. S.) 423 and note; Guthrie v. Field, 85 Kan. 58, 116 Pac. 217, 37 L. R. A. (N. S.) 326; McGrew v. Lamb, 60 Colo. 463, 154 Pac. 91; U. S. v. Lumber & Mfg. Co. (D. C.) 198 Fed. 893; Reed v. Reed, 98 Miss. 354, 53 So. 691, Ann. Cas. 1913A, 1194; Lafferty v. Lafferty, 42 W. Va. 789, 26 S. E. 264; Cribben v. Deal, 21 Or. 215, 27 Pac. 1047, 28 Am. St. Rep. 749; Sayles v. Queirolo, 71 Misc. Rep. 566, 130 N. Y. Supp. 806; 3 Washburn on Real Property (6th Ed.) § 2091; 2 Tiffany on Real Property, § 434 (p. 1597), also section 461 (p. 1745) ; Board of Education v. Hughes, 118 Minn. 404, 136 N. W. 1095, 41 L. R. A. (N. S.) 637; Vanderbilt v. Vanderbilt, 54 How. Prac. 250; 1 Devlin on Real Estate (3d Ed.) § 457; Osby v. Reynolds, 260 Ill. 576, 103 N. E. 556, Ann. Cas. 1914D;387, and note at page 390; Threadgill v. Butler, 60 Tex. 599; 8 R. C. L. p. 956. We do not find it necessary to pass upon this question, as the deed under which-appellant claims contained the name of no grantee, nor was he ever in possession of the property so far as the record shows, at the time of the execution, delivery, and recording of the quitclaim deed to appellee; and this falls short of coming within any of the rules of construction we have found. It follows that the judgment of the district court ought to be and is affirmed, and it is so ordered. ROBERTS, C. J., and PARKER, J., concur.