Whiting v. Hoglund

MaRShall, J. Counsel for appellant present for consideration upon this appeal these questions: Was the land in controversy conveyed to respondent by a deed duly delivered in the lifetime of the grantor ? If so, was such conveyance made in fraud of the creditors of such grantor? Some supposed collateral questions are treated by counsel which will receive such attention as they seem to deserve. There is little or no question but that the facts upon which the trial court reached the conclusion that the deed was delivered occurred'. In any event, upon the record, the findings in that regard must stand as verities since they cannot well be said to be against the clear preponderance of the evidence. Therefore a deed of one description of land was duly delivered to the respondent, such description not being the one intended by the parties, and such deed was returned to the [137] .grantor for correction. A new one was made by Mm for that purpose covering the proper description, was delivered to the register of deeds to be and was recorded, and was thereupon returned to the grantor by mail. The court decided by inference from those facts that the delivery to the register was for the use of the grantee, and on that predicated the conclusion that, in legal effect, the delivery was to the grantee, fully recognizing that it was essential to its validity that it should pass out of the control of the grantor. It having been made for the purpose of correcting the prior erroneous instrument, which was properly delivered, the only reasonable inference is that the second delivery was for the use of the grantee. Such being the case, the instrument, the instant it came into the hands of the register for record and was duly entered by him, was beyond the control of the grantor and in legal effect under that of the grantee. The register under the obligations -of his office and for the consideration to which he was entitled, impliedly, by receiving the paper, agreed to perform the service of recording it for the grantee, and thereby became his •agent, to all intents and purposes, to that end. The facts above stated make an ordinary case of one for a consideration, at the request of another, agreeing to perform a service for a third person,- — a stranger to the immediate transaction. The latter, in such circumstances, upon the consummation of the transaction between such immediate parties, becomes vested with the right to have the promise as to him executed, and his status in that regard cannot subsequently be disturbed without his consent. Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440. But the delivery to the register under the facts of this case need not necessarily rest on the principle stated. The sending of the erroneous deed to the grantor for correction made him necessarily the agent of the grantee to do everything reasonably appropriate to that end. What followed, obviously, was appropriate. Therefore, when the new deed was [138] delivered to tbe register it.was delivered by tbe grantee’s agent, and when it was received back from the former it was received by such agent. There can be no doubt but that tbe instrument was demandable by tbe grantee of tbe register, re-gar’dless of the wishes of tbe grantor, at all times after it was delivered to such register’, both upon tbe ground that by agreement between him and such grantor tbe former became tbe agent of tbe grantee, and upon tbe ground that tbe delivery was made to tbe register by the agent of tbe grantee with tbe intention of parting with tbe control of tbe instrument, as regards its efficiency, for tbe purpose indicated upon its face. Tbe authorities along this line are numerous. Tbe delivery of a deed by tbe grantor to tbe register of deeds for record, intending it to thereby take effect, and with tbe consent of tbe grantee, is a sufficient delivery. Cooper v. Jackson, 4 Wis. 537; Buffum v. Green, 5 N. H. 71; Glaze v. Three Rivers F. M. F. Ins. Co. 87 Mich. 349, 49 N. W. 595; Moore v. Giles, 49 Conn. 570. Delivery of a conveyance by tbe maker to a third person for tbe grantee at tbe latter’s request, or as bis authorized agent, is 'a sufficient delivery to give full effect to tbe paper. Sargeant v. Solberg, 22 Wis. 132; Harrington v. Brittan, 23 Wis. 541. An examination of tbe authorities cited will show they support this as tbe law. Tbe question as to whether any particular circumstance constitutes an efficient delivery of a deed or not turns on tbe intention of tbe parties. There need be only a parting with tbe paper by tbe grantor and tbe intent thereby to pass title and assent thereto by tbe grantee, though tbe instrument never comes to tbe. latter’s manual possession. His assent may be presumed by tbe mere beneficiary character of tbe transaction, subject to be rebutted by proof to tbe contrary. Counsel for appellant argue at some length as to when a deed will or will not be reformed, citing authorities which have very little or nothing to do with a case of this sort, evens [139] if the question of reforming the erroneous deed by judicial decree were up for consideration. There is no such question in the case since the parties reformed the instrument themselves. In any event, authorities to the effect that a deed containing a wrong description cannot be reformed if it would be void regardless of the mistake, such as a deed intending to convey a homestead, but containing the wrong description, and not-signed by the grantor’s wife, and authorities to the effect that,, in an action to reform a land contract by rebating the purchase price because of mistake in including therein a description of land of much less value than that intended, the land' included not being the property of the executory vendor, the defect cannot be cured by inserting the proper description,, are entirely foreign to any question arising, or that in any event could arise in this case. Care should be taken in presenting an appeal here not to submit for consideration matters which are entirely outside of and not, in any reasonable view, applicable to the cause. On the subject of whether the deed to respondent was made in fraud of creditors little need be said. We fail to discover anything in the brief of appellant’s counsel that could well be dignified by being called a discussion of that matter, yet, as-appears by the exceptions and the purpose of the action, it was a principal ground of complaint. It must be assumed counsel apprehended the findings of the trial court on that subject to be well grounded in the evidence, as it seems plain they are. Indeed, as pointed out by counsel for respondent, there does not appear to have been any evidence to avoid the deed on the ground of fraud. The evidence tending to establish fraud on the part of the grantor is exceedingly meager, and there is none “whatever showing that if the grantor had a fraudulent intent it was participated in by the grantee, while it appears, as the court found, that a fairly valuable consideration was given for the land. . By the Court. — The judgment is affirmed.