Overman v. Kerr

DilloN, J. i deed • • delivery. I. The first question which presents itself for decision, is one of fact, viz.: Was the deed of the 7th June> 1853, ever delivered to the commissioners or t0 COunty ? As to the plaintiff, Brown, it is perfectly clear it was never delivered. Defendant scarcely [490] contends to the contrary; but with much more plausibility he does insist that the delivery was complete as to the three Overmans, and, if so, the instrument would convey at least an undivided three-fourths of each of the lots embraced in the deed, and among others, the lot in controversy. The Weight of evidence is against the defendant on this point. We mention the following circumstances: 1st. The proposition was a joint one by Overmans and Brown, to convey a full title to the lots, and not an undivided three-fourths. 2d. The deed as prepared contemplated that all of- the plaintiffs should execute and acknowledge it. 3d. There was no agreement or .talk between plaintiffs and commissioners about receiving and accepting a deed, unless signed by all. 4th. The fair weight of evidence is to the effect, that the execution of the deed by the Overmans was with the ex: press understanding that the notary should retain it to obtain Brown’s signature, and was not authorized to deliver it to the commissioners or to the county, and that it was never so delivered, either by the Overmans or by the notary. Without Brown’s signature the instrument was immature — not complete — and it was intended by the plaintiffs to be delivered when it was made perfect, and not before. And, in general, an instrument will not be regarded as delivered when anything remains to be done by the parties by whom the delivery is to be made. Parker v. Parker, 1 Gray, 409. 2. — Asa convey, II. The defendant next makes the point, that if the deed was defective it may yet be treated in equity as a valid contract to convey,and enforced accordingly. It is true that defective deeds are often thus enforceable. Doniphan & Hughes v. Street, ante, 317. But this principle has no application to this case. If the instrument was [491] not sufficiently delivered to be valid as a deed, it could not be treated as sufficiently delivered to operate as a completed contract. Parker v. Parker, supra. III. TLe defendant next claims that he is entitled to all of the equitable rights of the county, his remote vendor, and that the county has such equities and rights as that it would' be entitled to a specific execution of proposal or contract to donate or convey the lots to the county. In other words, if, on the 28th day of March, 1854 (the date of the sale of the lot by the county to Pease, the defendant’s vendor), the county could have enforced specific performance against the plaintiffs, the defendant now can,although the vendee of but one of the lots, and although it be admitted that the county could not now have such relief. 3. conTRACT• assent! The question here arises, what was this original agreement, that is, what were its terms and conditions? Were these set forth in the deed of June 7th, or in the second deed ? And here in our opinion the defendant fails upon the evidence to show that the terms and conditions of the contract were in fact settled. From the evidence we think the real cause of all the trouble that has since arisen, with respect to these lots, has grown out of the fact that the plaintiffs and the commissioners never definitely fixed and settled upon the precise terms and conditions upon which the lots were to be donated and received. The plaintiffs were willing to give the lots if the county seat should be located there,, and if some satisfactory provision should be made whereby the avails of the lots 'should be used in securing the erection of public buildings, and they should be indemnified for the value of the lots if the county seat should subsequently be removed. In other words, they were not willing and did not agree to give fifty lots absolutely, and run the chances of the proceeds [492] being applied to tbe erection of county buildings at Cedar Falls, and of tbe county seat itself being removed. Tbe commissioners were not willing to accept lots witb restrictions wbicb would greatly diminish tbe value of tbe donation to tbe county. No insuperable difficulty was however apprehended. Brewer, one of the commissioners, drew tbe first deed. Tbe Overmans demurred to signing it, but finally consented. Brown was absent. On tbe supposition and expectation that Brown would sign it when be returned, and that it would all be right, it was left with tbe notary, and tbe commissioners announced and settled upon tbe location of tbe county seat at Cedar Falls, considered tlieir commission at an end, left for their homes in another county, and no farther settlement or agreement was ever made and concluded between the plaintiffs and them, or between tbe plaintiffs and tbe county. It is fundamental that to render a proposed contract binding, it must be assented to by both parties in tbe same sense, or in a fixed and determinate sense. Tbe minds of tbe parties must meet, mingle and concur, though this need not be at tbe same instant. A mere voluntary compliance with its terms, where there is no agreement previously acceded.to and completed, does not render it obligatory upon tbe other party. See, in illustration, Hazard v. New England Insurance Company, 1 Sumn., 218; Johnson v. Fessler, 7 Watts, 48; Meynell v. Surtees, 31 Eng. Law & Eq. Rep., 475; Tucker v. Woods, 12 Johns., 190; Tuttle v. Love, 7 Id., 470. It is just here that tbe defendant’s case fails. Brown’s consent or accession to tbe specific terms of the grant or donation, was not bad; the commissioners left without procuring it, that being no essential part of their duties, and neither they or the county and the plaintiffs made any subsequent agreement on the subject. [493] 4 commis-power to: contract, [492] It is not necessary to deny that the commissioners might, under the act, if they deemed it best for the county, make [493] tbu location with reference to the proposed donation. But their whole powers and duties were expressed in the act which created them. Perhaps they might accept the grant for the county upon the conditions named in the first deed; as, under Twiford v. Alamakee County, 4 G. Greene, 60, these conditions were such only as the law would imply. But the act did not constitute them, in any sense, the agents of Blackhawk county, or empower them to bind it to the performance of any obligations whatever. They would possess no authority to make a contract with the proprietors, agreeing, on behalf of the county, to cause public buildings to be erected on certain lots, or to pay to them the value of the lots if the county seat should be removed. The defendant argues that, by the tender of the second deed, the plaintiffs admit a contract as therein set forth. Admitting, for the argument, that an acceptance of this deed by the county judge would bind the county, it seems to us clear that the county, or the defendant, whose rights are derived from and dependent upon those of the county, cannot set up rights under an instrument which the county rejected because it did not contain the contract of the parties. Besides, this ground of relief is not set up by the defendant in the pleadings. As we hold that there was no completed contract, it becomes unnecessary to determine the other point made by appellant’s counsel, viz., that enough was shown to take the contract out of the statute of frauds. The evidence, as respects the lot in controversy, which was sold at private sale to a party conversant with the dispute between the plaintiffs and the county, does not estop the plaintiffs from asserting their title: as to the other lots, it is needless to inquire. Affirmed.