Hargrave v. Melbourne & Troy , 86 Ala. 270 ( 1888 )

SOMERVILLE, J.

The deed of December 11th, 1886, from Hargrave & Newman, to the plaintiffs, Melbourne & Troy, is perfect on its face, and bears no evidence on the face of the paper itself that Mrs. Hargrave, the wife of one of the grantors, was to unite in its execution. It was not competent, therefore, to prove by parol evidence, that it was delivered to Troy, one of the grantees, as an escrow, not to operate as a deed until it was completed by the signature of Mrs. Hargrave, or to be evidence merely of the receipt of the purchase-money of the land from the grantees. This would be a manifest infringement to the rule which forbids the admission of oral declarations of the parties, made contemporaneously with, or antecedent to the execution of a written instrument, for the purpose of contradicting its terms. The delivery, therefore, of a deed complete on its face, to the grantee, is an absolute delivery, whatever conditions may be orally annexed to qualify or postpone its operation. — Shelby v. Tardy, 84 Ala. 327; Cherry v. Herring, 83 Ala. 458; Firemen’s Ins. Co. v. McMillan, 29 Ala. 157; Tiedeman on Real Prop. § 815.

The testimony of the witness Troy on this point, to which objection was taken, should have been excluded. The evidence shows that the deed was delivered, and became operative as an executed contract. The fact that it was returned to the grantors, to have the signature of Mrs. Hargrave attached, did not change the property in the paper. It still belonged to the giuntees, and the’ -lould have maintained an action of detinue for it, upon ¡.j evidence set out in the bill of exceptions.

It is true that the deed conveyed nothing to the grantees, because of the fact that the grantors did not own the property described in the instrument, and no possession was taken under it by the grantees. This defective description did' not invalidate the deed as an operative executory contract. It could be reformed in a court of equity, by correcting the mistake upon sufficient proof. And being a warranty deed, with the usual covenants of both seizin and warranty, besides containing the statutory words of warranty, “grant, bargain and sell,” it would operate to convey to the grantees whatever title the grantors afterwards acquired to the misdescribed land, eo instanti, without a second conveyance. — Parker v. Marks, 82 Ala. 548; Chapman v. Abraham, 61 Ala, 108.

If the plaintiffs had any remedy, it was an action for breach of the grantors’ covenant of seizin, and of their alleged right to convey, which is an action on the written contract evidenced by the deed. — Anderson v. Knox, 20 Ala. 156; Mecklem v. Blake, 99 Amer. Dec. 68; Morris v. Phelps, 4 Ib. 323; King v. Gilson, 83 Ib. 269; Dickson v. Desire’s Adm'r, 66 Ib. 661; Baxter v. Bradbury, 37 Amer. Dec. 49; Westbrook v. McMillan, 26 Ib. 187; Gilbert v. Bulkley, 13 Ib. 58; Horsford v. Wright, 1 Ib. 8; Tiedeman on Real Prop., §§ 850-851; Lamb v. Danforth, 8 Amer. Rep. 426.

The complaint declares on the breach of an oral agreement to deliver a warranty deed, and the variance is fatal to any right of recovery, in the present form of the pleadings.

.Whether Melbourne had the authority, after the dissolution of the partnership of Melbourne & Troy, and after suit commenced, to accept the second, or corrected deed, executed by the grantors after they acquired a good title to the land, becomes an immaterial inquiry, in the view which we have taken of the case.

The City Court erred in the judgment rendered. The judgment is accordingly reversed, and a judgment will he rendered in this court dismissing the action.

Reversed and rendered.