Owen v. Perry

Wright, J. David Roberts istbe defendant more immediately and largely interested, and his title is this: First, a deed from plaintiff to J. N. Bartholow, of date March 16, 1861, expressed consideration $2,100, and filed for record October 21, 1864; next, a deed from said Bartholow to John D. Perry; consideration named $2,500, October 10, 1864, and filed for record 21st of-the same month. This is followed by a deed.from Perry to Roberts; consideration $3,210, date January 3,1865, date of record not shown. Second, a mortgage made by Burns (through whom plaintiff derives title), to Fisher, June 8,1857, to secure $1,000. Plaintiff took title from Langworthy in 1858. This mortgage was foreclosed in August, 1861. Burns was the only party defendant. Amount of judgment $558.75, with interest and costs. September 28,1861, the property was sold thereunder to John D. Perry for $641.10, and he took sheriff’s deed accordingly. On the 24th of June, 1862, Perry commenced his proceeding in equity against said Owen, setting forth the mortgage aforesaid, the foreclosure and his purchase, that Owen held the legal title, and asking that he be decreed to redeem from said sale by a day to be fixed, and in default that his equity be barred. An original notice was issued in due form, and service thereof accepted by “ E. M. Bartholow, attorney for Wm. F. Owen.” The case was referred. The referee reports, that plaintiff appeared before him by his attorneys, * * and “ defendant by his.attorney, E. M. Bartholow,” and, based upon certain agreements and admissions, he found that Owen was entitled to redeem upon paying $605.45, — 421 — with costs, and that, to entitle him to do so, he should pay that amount, with interest, in sixty days from that date, to wit, February 4, 1862. This report was heard two days thereafter, in all respects confirmed, the equity of said Owen being declared barred unless he should pay the amount named within the time above stated. After this, as before shown, Perry took title from J. N. Bartholow, and conveyed to defendant Boberts. Plaintiff denies the validity of the deed from himself to J. N. Bartholow. He further claims, that the proceedings by which Perry sought to foreclose his equity do not conclude him for the reason that he was not served ; that he made no appearance in person; that E. M. Bartholow was not his attorney, and had no power to bind him. In this connection, it may be stated, that, when the order of reference was made, there was no appearance for Owen; but, though called, he made default. There are other objections urged by plaintiff to that proceeding, which, however, need not now be further stated. conveyance; of wank aeeL It is manifest, that, if defendant’s title can be sustained upon either ground stated, plaintiff’s action must fail. It is equally clear, that one of these parties must suffer a loss. Plaintiff never received any consideration for the alleged conveyance to J. N. Bartholow, and probably never will. Boberts paid the full amount named in his deed, $3,210, in money, to Perry, immediately took possession, and has used and occupied the premises ever since. Having said this much to show the attitude of the parties, we turn first to the objections made to defendant’s title, derived through the Bartholow deed. Plaintiff was a non-resident of the State (and so continued), and constituted E. M. Bartholow his agent to take charge of and collect the rents on this place. In the fall of 1860 he wrote to this agent to sell the land, — 422 — who replied, asking him to send a power of attorney. Instead of doing this he forwarded a deed, duly signed and acknowledged, with the name of the vendee and amount of consideration left blank. This deed also referred to the Burns mortgage, leaving blanks for the names of mortgagor and mortgagee in part, its original amount and the amount still unpaid; which mortgage, by the terms of the deed, was recognized as an incumbrance, and to be paid by the purchaser. , This deed was accompanied by a letter, in which plaintiff says he incloses deed with title papers; that if the agent can possibly sell so that he can realize $2,500 cash in New York, etc., not to fail; that he would be unwilling to trade for other property; that he doubts not a trade, to which the agent had probably referred in some other letter (not disclosed), would be profitable; he hopes he will make the arrangement spoken of and get the city property himself; if he made $5,000 for himself out of the trade he should only be the better pleased; that if he could get the $2,500, for which he was willing to sell, by the 20th of April, he could make an arrangement by which he would not be a loser. If he made the trade he was directed to telegraph, as he desired to secure a piece of property where he resided which was to be sold about the 1st of May. In May (16th), 1861, Bartholow wrote him that he had not sold; that he was making every effort, etc. In July he wrote of an offer of $2,500 in full paid bank stock, subject to the incumbrance. This offer was by Perry, who, it appears, is a relative of Bartholow. In June, 1861, plaintiff gave to one Cropper an order for this deed, or for the money if the land had been sold. In May, 1862, Bartholow wrote to Cropper, advising him that the mortgage (of which he says he had before advised him), had been foreclosed, and the land sold; that he still held the deed, and that it was, how — 423 — ever, of no validity ; and that he advised a friend of his to buy the land under the mortgage sale, with whom he believed Mr. Owen could make a reasonable arrangement. Cropper died in 1864, and plaintiff never heard from him after giving the order in 1861. Bartholow, when he delivered the deed to his son, in 1864, filled up the blanks with the name of the grantee; the consideration, $2,100; the given name of the mortgagor ; the full name of the mortgagee; the amount thereof, $1,000; the amount paid thereon, $600. He also took, probably at the same time, from the grantee, an obligation to convey 320 acres of land to plaintiff, when requested, in consideration of this conveyance; bwt the value of these lands is not shown, nor has the instrument either date or stamp. The objections to the deed are, that it passed no title until completed; that there was no authority to complete it; that such authority could not be given by parol, nor otherwise than by an instrument of equal dignity with the deed; that the blanks were not filled pursuant to any authority, either written or verbal, but in disregard of all authority ; after the authority to sell had ceased; and because changed in a material part, after it had passed from the possession of plaintiff, and without his knowledge; that the deed was, therefore, void, and neither Perry nor Huberts could take title under it; that they could not be innocent purchasers ; and then it is further claimed, that the testimony shows that they had notice, if not of all of the facts, at least sufficient to put them upon inquiry. This is not a case where the instrument was wholly written over the grantor’s name. Nor do the questions made arise between the parties to the instrument. Nor yet again was this deed deposited as an escrow with Bartholow to be delivered to a particular person upon the happening of a contingency. Nor, in our opinion, need — 424 — we enter upon the mooted question whether power to fill a material blank in an instrument affecting or conveying real property, may or may not be conferred by parol. The authorities, upon this point, are known to be conflicting, and possibly, even as to a party occupying the position of defendant Roberts (treating him as otlicrWise a Iona fide purchaser), this court might not be -united. .'..For myself, I confess, notwithstanding the opinion of .the chief justice (Simms v. Hervey, 19 Iowa, 297), “ that the practical instincts and business experience and sense of our people ” are in favor of the validity of a deed thus filled up in accordance with a parol authority. There is no more reason, under our statute, which does not require the deed to be sealed, nor to be acknowledged as between the parties, why one should not be as much bound by his deed when' executed in blank and filled up according to his directions, as by a blank acceptance or indorsement of a note or bill. 1 Redf. Rail. 124. But, however this may be, there should and can be no reasonable doubt as to its validity, as to third persons, who have no knowledge of the circumstances, when it is sent to an agent, with instructions in writing to negotiate the sale and deliver the deed to the purchaser. If an alteration, then it is to be taken as done by the consent of the party previously given. There is no doubt but that the party might be bound by his consent afterward given. And if there was power to sign and acknowledge the deed, — the same being delivered to the agent in blank, with authority in writing, express or implied, to fill up the blank, and thus perfect the conveyance, — its validity thus far could not well be controverted. Drury v. Foster, 2 Wal. 24. The contract or deed, when the blank has been filled, expresses the exact agreement of the parties, and nothing but an extremely technical view can — 425 — justify the holding that it is void, or in the absence of fraud even voidable. Bridgeport Bank v. N. Y. & N. H. R. R. Co., 30 Conn. 231. If the authority was in writing in this case, we do not understand appellee to insist that the blanks might notb|T'' filled. But this is denied, it being also claimed that thje*-\ authority was not followed, if in writing. To our mújfqs^ it is but too clear that it was the intention of plain^fffYbl have the deed and accompanying letter take the place^|^ a power of attorney. That he then had unbounded\pn^v-( fidence in his agent there can be no doubt, and that he^. intended that this deed should be filled up by the agent, and delivered to whoever might be the purchaser, is beyond all question ; and that this intention continued even when he gave the order to Cropper, is plain enough, for Cropper executed to him a receipt showing that, if he obtained the deed, he was to use it in the same way, if he could make a sale. This order, by the way, Cropper never delivered, nor is there evidence that Bartholow knew of its existence. Now, if the title was in the son, or even in Perry, we should be much inclined to grant the prayer of this bill. We think there are circumstances sufficient to justify a court of equity in concluding that the Bartholows, father and son, and their relative, Perry, conspired to defraud plaintiff and deprive him of his property. But this, as to Perry at least, more upon the ground of fraud, than any want of power in the elder Bartholow to fill up and deliver the deed. As to Roberts, however, there is not in the record the slightest evidence of a fraudulent purpose. He knew what the record disclosed, and no more. He knew nothing of the order to Cropper, of Bartholow’s letters, of the circumstances under which young Bartholow obtained his title. If he had read the original deed, as the proof tends to show his attorneys did, before tak — 426 — ing his title, there was nothing there to put even a cautiously prudent man upon inquiry. It is true the grantee’s name, and the other matters before referred to, were apparently written by some other than the scrivener who drafted the body of the deed, but when, under what circumstances, there was nothing to indicate. Certainly, it could be as well presumed that this was done before the deed passed from the hands of the grantor as afterward. And this was as true of his attorneys as of himself, except ás to the knowledge of the handwriting. Then, the fact insisted upon that these attorneys, some months before, for another party, had examined Perry’s title and declined to give an opinion that it was correct, is without force, for the reason that then his title rested alone upon the mortgage foreclosure; there was no record evidence of title through J. N. Bartholow. Not knowing certainly the facts as to the authority of the attorney to accept service of the original notice, they would not say to the then searcher of the title, that it was indisputably good. When called upon by Roberts, however, they found that Perry had title through another and apparently perfect source; with nothing to throw suspicion on it; and therefore, conceding that the client would be bound by the attorney’s knowledge acquired months before and when in the employment of another, we should still have to hold that the rule did not apply. It is true that some time elapsed between the date of the deed from Owen to Bartholow and its recording; but not more than often occurs in transactions, the correctness of which no one would think of questioning. It is also true that young Bartholow, as he said, for Perry, employed counsel to bring the suit, which barred plaintiff’s right of redemption. But of this, Roberts had no knowledge, and in the fact itself, there is but little if any significance. — 427 — The difficulty with plaintiff’s case is, that the confidence reposed by him in his agent has been, it may be conceded, most wickedly betrayed. But he placed it in the power of this agent to deceive and injure others. He desired to sell this land — to sell as promptly and with as little delay as possible. In the utmost good faith, and relying most implicitly upon the integrity and ability of this agent, he sent him this deed, with full authority, so far as third persons were concerned, buying in good faith and for value, to act for him, fill it up and deliver it. He did no more than this. When these blanks were filled the deed was perfect. And this was what the parties intended. No word of all their correspondence contradicts this. When thus filled and delivered, the delivery was the act of the grantor. It is not necessary that the possession of the instrument by the grantee, in order to a valid delivery, shall be simultaneous with the assent thereto in the grantor’s mind, but it may take place long afterward, as it may before. This assent, when given, whether in person or by agent, gives character to the possession, and, when given, imparts, thus far, validity to the deed. But, without pursuing the subject further, see 1 Greenl. 568, note 3; Greenl. Cruise, vol. 4, p. 25, marg. note 2 ; as also cases' cited by appellant’s counsel. We, therefore, without reaching the second point in the case, hold, that the plaintiff has failed to show sufficient ground for disturbing the title of defendant Roberts, derived through the Bartholow-Perry deed, and that his bill should be dismissed. The judgment will be reversed and cause remanded for this purpose. Reversed.