Zoerb v. Paetz

The following opinion was filed September 29, 1908: WiNsnow, C. J. The appellant strenuously contends that the first delivery of the deed to him was an absolute delivery, which passed title, and that he could not be divested [64] of title by merely banding tbe same back to the scrivener, nor by anything short of the execution and delivery of another deed by himself. As a general proposition it is true that delivery of a deed with intent to pass title does pass the title, and that the surrender or cancellation of such deed does not revest the title in the vendor. Slaughter v. Bernards, 97 Wis. 184, 72 N. W. 917. No one would contend, however, that the handing over of a deed merely for purposes of examination, or by .mistake supposing it to bo another paper, would carry any title to the grantee, although there would in both cases be manual tradition of the document to the grantee. It is the intent to pass title which makes the delivery effective, although mere mental reservation on the part of the grantor cannot affect the question. Rogers v. Rogers, 53 Wis. 36, 10 N. W. 2. When, however, the agreement as understood by both parties is that delivery is not to be made nor title pass until precedent or concurrent conditions are performed or agreements made by or on behalf of the grantee, a mere manual tradition of the deed under the mistaken supposition that these prerequisites had been fulfilled, when in fact they had not, will not pass title irrevocably. In such case the whole transaction is incomplete, and, as in other cases of mutual and material mistake, a court of equity has ample power to cancel the apparent conveyance in the same manner as it may cancel other instruments under such circumstances. De Voin v. De Voin, 76 Wis. 66, 44 N. W. 839. In the present case neither party had definite knowledge of the character of the papers or agreements necessary tO' carry out their understanding, but they mutually relied on Ohloupek to decide that question and prepare the papers. Chloupek decided that, in order to render the transaction entirely safe for Mrs. Kautz, the bond and mortgage should be signed by Mrs. Zoerb as well as by her husband, and this course was manifestly desirable because of the many pro [65] visions in tbe bond requiring personal service and attention which could only be properly performed by a woman. lie drew the papers intending that she should so sign and that the transaction should not be completed until she did sign. Under the circumstances his intention was in legal effect the intention of both parties, and his forgetfulness and consequent mistake in handing over the papers before a material part of the transaction had been performed was the forgetfulness and mistake of both parties, for the correction of which a court of equity will afford relief by cancellation of the deed. But it is contended that the subsequent delivery of the papers to Chloupelc, with directions to deliver the deed to Zoerb when his wife had executed the bond and mortgage, constitute a valid delivery in escrow. This contention is fully met and answered by reference to the case of Campbell v. Thomas, 42 Wis. 431, which presented practically the. same question. Granting that there could he a valid escrow-upon such a condition as is here presented, still there was no valid written agreement to convey the land, such as would satisfy the statute of frauds, deposited with the deed. This was held necessary in the case cited, and that view is decisive here. There was plainly no error prejudicial to the plaintiff in the conclusions of the court, and the judgment must be affirmed. By the Court. — It is so ordered. A motion for a rehearing was denied November 27, 1908.