Everts v. Agnes

[462] By the Cotvrt, Smith, J. This case was fully presented, elaborately argued, and carefully considered, when before this court on a former appeal taken in the case. See 4 Wis. Rep., 343. The only material difference between the case as now presented, and its character on the former occasion, is, that now the defendant, Swift, appears in the attitude of a "bona, fide purchaser, whereas before he did not; and the only question necessary to be now considered, is whether, under the circumstances, he is entitled to protection as such bona fide purchaser; or in other words, whether he derived title by virtue of his conveyance from Agnes, he having paid to the latter a valuable consideration without notice of the manner in which he obtained the deed of Everts and wife. It certainly cannot be deemed necessary to repeat, at this time, the observations made upon this branch of the case when it was before us on the former appeal. Our views remain unchanged ; except that we are more thoroughly satisfied that the intimations and reasoning then made were correct, and we are prepared now, after another careful review of all the facts and circumstances of the case, to affirm, confidently, what we ■then might have uttered doubtingly. We have not the slightest doubt that the deed of Everts to Agnes was delivered to Zettler as an escrow, to be delivered only upon the performance of the conditions prescribed. That Agnes fraudulently obtained possession of the deed, and fraudulently procured it to be recorded. That no title passed to Agnes, and hence he could convey none to Swift. The latter has his remedy upon his covenant against Agnes if any there be. This is the only point necessary to be considered at this time, and we adhere to the language and the conclusion adopted when this case was under consideration before, viz.: that the fraudulent procurement of a deed, deposited asan escrow,from the depositary, by the grantee named in the deed, would not operate to pass the title; and that a bona, fide purchaser from such grantee so fraudulently procuring the deed, could derive no title from him, and would not be protected. [463] It was urged that if this rule is to prevail there can be no safety to purchasers. But to this it may he answered with equal force, that if the contrary rule is adopted there will remain no protection for vendors. The legal effect and use of an escrow are well known, and have long been familiar in the conveyance of real estate. It is not negligence in any legal sense to deposite an escrow to he delivered on performance of the conditions attached. Hence the defendant can claim no superiority in equity on that ground. On the contrary it is clear to our minds that the prior equity is with the complainant, as he had the legal title as well as the equitable estate. The proof on this subject is even more clear than it was before, and leaves no doubt on our minds. We think that the complainant is entitled to relief, and that the defendant, Swift, should seek his remedy against the person who has defrauded him. The decree of the circuit court is reversed and the cause remanded for further proceedings.