Slocum v. Bracy

Mitchell, J. This was an action to recover the consideration paid for land which defendants contracted to convey to plaintiffs by “a good and sufficient deed, free of all incumbrances,” but which it is .alleged they had failed to convey, and were unable to convey, by reason of want of title. Stripped of immaterial matter, the answer was that defendants had performed by procuring a quitclaim deed of the land to plaintiffs from a third party whose title ‘Tested upon final receipts of the receiver of the United States land office,” which deed plaintiffs had .accepted as full performance of defendants’ contract. The reply admitted the execution of this quitclaim deed, but denied that plaintiffs had accepted it as performance of the contract, .and alleged that, at the time of the execution of the deed, it was agreed between plaintiffs and defendants that “it should not be deemed performance of the contract, except in the event that a patent for the land should be issued by the government;” that the ■entry of the land was canceled by the government, and hence no patent issued, by reason whereof there was an entire failure of title. No rule of law is better settled than that, where a deed has been executed and accepted as performance of an executory contract to ■convey real estate, the contract is functus officio, and the rights of the.parties rest thereafter solely on the deed. This is so although the deed thus accepted varies from that stipulated for in the contract, as where the vendee accepts the deed of a third party in lieu ■of the deed of his vendor; and as, in the sales of land, the law re [253] mits the party to Ms covenants in Ms deed, if there be no ingredient of fraud or mistake in the case, and the party has not taken the precaution to secure himself by covenants, he has no remedy for his money, even on failure of title. What is said in Donlan v. Evans, 40 Minn. 501, (42 N. W. Rep. 472,) seems to conflict with this doctrine, but this question was not involved in that case. The complaint alleged false and fraudulent representations as to the title of the grantor in the deed. The court found this allegation to be true, and the evidence abundantly sustained the finding. This fraud was the real gist of the cause of action in that case. The deed of a third party not being what the executory contract called for, the burden was on the defendants, as the trial court correctly held, to prove that plaintiffs accepted the deed in performance of the contract. But it was not necessary to prove that plaintiffs expressly agreed, in so many words, to accept it as performance; the fact might be proved by the acts of the parties, and other circumstantial, but equally persuasive, evidence. The evidence is conclusive that this quitclaim deed was executed and unconditionally delivered to plaintiffs with reference to this executory contract; also that plaintiffs accepted it as a conveyance with reference to that contract and in lieu of a deed from the defendants, and then proceeded to settle and close up the transaction on that basis. This certainly made out at least a prima facie case for the defendants that the deed was accepted in performance of the contract. If there were any conditions attached to this acceptance, the burden was then cast on plaintiffs to prove it. There would he a very clear distinction (apparently not fully kept in mind by counsel) between plaintiffs merely accepting the instrument as a conveyance and their accepting it as performance of defendants’ contract. We therefore think that it would have been competent for plaintiffs to have proved by parol the allegation of their reply that their acceptance of the deed as performance of defendants’ contract was only conditional. Such evidence would not contradict the terms of the deed, or tend to prove that it was not to be operative as a conveyance according to its terms. But the defect in plaintiffs’ case is that they produced no sufficient evidence to rebut defendants’ evidence that the deed was accepted as performance of the executory [254] contract, or to show that there was any such condition attached to }ts acceptance, or such as is alleged in the reply. (Opinion published 56 N. W. Rep. 826.) Application for reargument denied November 21, 1893. The only evidence offered having the least tendency in that direc- ' tion was that, after the entry of the land was canceled, the defendants made some attempts to get a rehearing before the secretary of the interior, in order to get the entry reinstated. While this fact might be of some weight as corroborative of some other £nd better evidence, yet, standing alone, it amounted to nothing. Therefore, in our opinion, the evidence as it stood conclusively showed that plaintiffs accepted this quitclaim of a third party as performance of defendants’ executory contract to convey, and hence, there being no element of fraud or mistake in the transaction they were not entitled, under the rules of law already referred to, to recover the consideration paid because of failure of title. On this ground the action was properly dismissed, and whether the trial ?ourt assigned the right reason is not material. Order affirmed.