Freeman v. Lawton ( 1894 )

Mitchell, J.

This action was brought upon the alleged agreement of defendant to assume and pay certain mortgages upon land conveyed to her by the mortgagors.

The only question in the case is whether the evidence justified a finding that there had been a delivery by the grantors, and an acceptance by the defendant, of the conveyance containing the “assumption clause.” This question can hardly admit of doubt. It is true the deed was delivered to and accepted by defendant’s husband, and not by her personally; but it is familiar law that delivery, absolute,, as to the grantor, made to an authorized third party, is good.

It would serve no good purpose to attempt to state the evidence at length. Suffice it to say that during at least ten years the defendant had been carrying on a somewhat extensive business, buying, selling, and trading real estate, the conduct and management of which seems to have been so entirely intrusted to her husband that she knew practically nothing about it. She could hardly name a single tract of land which she had ever owned, or whether it had been sold, and, if so, the consideration, or whether she still owned it. So far as appears, in every one of her sales, purchases, or trades, the conveyance had been delivered to or accepted by her husband. In the trade of properties out of which this suit grew, she executed and delivered to her husband a deed, without as much as inquiring the nature or amount of the consideration to be received, and, according to her own testimony, never did inquire or ascertain until after the commencement of this action, over five and a half years afterwards. These facts and others which might be mentioned, taken in connection with the confidential relation of the parties, amply justify the conclusion that the husband had authority to deliver defendants’ deed to the grantees, and to accept from them, as consideration therefor, whatever he deemed expedient, whether money or a conveyance of other property.

We place our decision upon the ground that there was sufficient evidence of actual authority on part of the husband to accept the conveyance, and not upon the ground of any equitable estoppel growing out of either his apparent authority or the subsequent conduct of the defendant.

There is nothing in the point that the court erred in excluding evidence that the plaintiff had acquired title to the mortgaged premises under the foreclosure of prior mortgages. As suggested by respondent’s counsel, had title been acquired under mortgages subsequent to these assumed by defendant, a very different question would have been presented.

Order affirmed.

(Opinion published 60 N. W. 667.)