Hollis v. Harris

■ WALKEN, J. The foundation of tbe claim to relief against tlie respondents, who are the appellees here, is that they signed the deed of Mrs. S. M. Harris to Ezekiel Hollis, and thereby bound themselves to convey the lands therein described to him, though the instrument was ineffectual as a legal conveyance by them. The respondents, except T. J. Harris, by their sworn answer deny in sweeping terms that they'signed, executed or delivered the instrument relied on. They aver that one Perry Nowe was the grantee in the instrument which they signed, that said Nowe backed out, and refused to take the same; that the instrument was never delivered to him, but was left with their mother, Mrs. S. M. Harris, to be destroyed. They aver that, after this instrument was signed by them, without their knowledge or consent, the name of Nowe-therein was erased, and the name of E. Hollis was inserted instead. Their answer shows explicitly that they were not parties to any contract to convey to said E. Hollis. The instrument, as altered without tlieir knowledge or consent, is not binding on them. The conveyance to Nowe to which they consented, and which they signed, was never consummated by delivery. They never consented to be bound by a conveyance to the person under whom the appellants claim. They had the undoubted right to determine to whom they would consent that the land be conveyed by them. Even if the conveyance to Nowe had been consummated by delivery, their signature thereto would not have subjected them to an obligation to convey to E. Hollis, if, without their consent, Nowe’s name was erased from the instrument, and the name of Hollis substituted in its place. When the instrument as thus altered is made the basis of a suit against them, a complete defense is furnished by proof that they never entered into the contract on which they are sought to be charged. Even if the contract had been made, its legal identity has been destroyed by the unauthorized alteration. — Montgomery v. Crossthwait, 90 Ala. 570; Schintz v. McManamy, 33 Wis. 299. In leaving with their mother the deed in which Nowe was named as grantee, the respondents can pot be said to have clothed her with apparent [291] authority to give effect to the instrument by delivering it to any other person than the grantee named therein. That act can afford no ground of estoppel in favor of a third person whose name was inserted without their consent. There might be some room for the operation of an estoppel if the respondents had signed the instrument, and intrusted it to another, with a blank space left for the insertion of the name of a grantee. Bo far as these respondents were concerned, the denials of their answer were sufficient to justify a dissolution of the injunction. The defendant T. J. Harris did not deny that he signed and delivered an instrument in which Mrs. B. M. Harris was named as grantor and E. Hollis was named as grantee. That instrument was very inartificially drawn. Manifestly, the purpose was to convey a fee-simple title to the lands described. It seems, that the single grantor who was named in the body of the instrument had only a dower interest in the lands. The language used, however, indicates that it was understood that her children would perfect the title by joining in the instrument. One of its clauses is in these words: “Sly children is of lawful age, and will sign the deed for themselves, making a lawful title.” The signature of her son, T. J. Harris, to an instrument embodying the claiise quoted, evidences an intention on his part to confer upon the person named as grantee whatever interest he had in the property, so as “to make a lawful title” to that extent. Though the instrument was ineffectual as a legal conveyance by him, yet his signature and attempted acknowledgment imply that he intended it to have effect as a conveyance of his interest in the lands described. It may be given effect as an agreement to convey. “It is a familiar doctrine of a court of equity, that an instrument in writing, intended as a conveyance of lands, wanting in some essential element to pass the legal title, . . . will be regarded as an agreement to convey, and performance of it will be enforced.” Roney v. Moss, 74 Ala. 390 ; Goodlett v. Hansell, 65 Ala. 151; Jenkins v. Harrison, Ib. 345. Under this rule, the bill discloses a ground of equitable relief against T. J. Harris, the existence of which was not denied by his answer. His demurrer did not reach this equity of the bill, or point out any defect in its averments. He did not show himself entitled to a dissolution of the injunction. The decree of the chancellor will be here so modified as to restore the injunction as against T. J. Harris. With this modification the decree will be affirmed. The costs of the appeal will be [292] taxed, one balf against the appellant, the other half against the appellee, T. J. Harris. Modified and affirmed.