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Page State v. Vaughan Nev.). 733 Tyson, In re (Colo. Sup.)......

1033 State v. Whiie (Wash.).

160 State v. Wilcox (Wash.). 368 Uhlv. Small (Kan.).

· 178 State v. \Vilson (Wash.). 106 Un Dong, People v. (Cal.).

12 State Board of Wagon-Road Com rs, Payne Union Pac. R. Co. v. Bullis (Colo. App.)... 897 v. (Idibo)

518 Union Pac. R. Co. v. Davidson (Colo. Sup.).1095 State Capitol Commission, Gross y. (Wash.) 972 Union Trunk Line, Cameron v. (Wasl.). .. 128 Ste:ubli v. Elaine Nat. Bank (Wash.)... 814 Union Wharf Co. v. Katz (Wash.).

617 Stegmier, Kittridge v. (Wash.).. 242 | Utt v. Frey (Cal.).....

· S07 Stephens v. City of Spokane (Wash.). 266 Stephenson, Webb v. (Wash.). 952 | Van Cott v. Pratt (Utah).

827 Sterling Manuf'g Co., Campbell v. (Wash.) 451 Van Horne v. Watrous (Wash.).

136 Stevens v. Mɔsconi (Colo. App.).. 318 Vansyekle, Rozell v. (Wash.).

270 Stevens, Bailey v. (Utah).. 828 Vaughan, State v. (Nev.).

733 Stewart v. Kyser (Cal.).

19 | Vaughn v. Comet Consol. Min. Co. (Colo. Stiles, Skagit County v. (Wash.). 116 Sup.)

422 Stockdale, Gomer v. (Colo. App.).

355 Vaughn v. School Dist. No. 31 of TillaStuth, State v. (Wash.). 665 mook County (Or.)..

393 Substitute for Senate Bill No. 83, In re Verdegreen, People v. (Cal.).

607 (('olo. Sup.)..

1088 | Vernon Irrigation Co. v. City of Los AngeSullivan v. Collins (Colo. Sup.)

331
les (Cal.),

762 Sullivan v. Germania Life Ins. Co. (Mont.) 742 | Vestal v. Morris (Wash.).

960 Sullivan, Reid v. (Colo. Sup.).

338 Vollmer, Juliaetta Tramway Co. v., two Sullivan, Shain v. (Cal.). 606 cases (Idaho)

.1115 Summers, Fry v. (Idaho).

. .1118 Vulcan Iron Works v. Edwards (Or.)..... 403 Sun Fire Office v. Wich (Colo. App.). 587 Superior Court of King County, State v. Waldron v. Pacific Bank (Cal.)..

218 (Wash.) 244 Wallace v. Axtell (Colo. App.)..

594 Superior Court of King County, State v. Walsh v. Cooper (Wash.).

127 (Wash.) 818 Walsh, Meadowcraft v. (Mont.).

914 Superior Court of Los Angeles, California Walton, Kremer v. (Wash.). .

374 Bank v. (Cal.). 604 Ward, People v. (Cal.).

33 Superior Court of Los Angeles, Grant v. Warner v. Broquet (Kan.).

228 (Cal.) 604 Warren v. Riddell (Cal.).

781 Superior Court of Napa County, Johnson Washington Cent. Imp. Co. v. Newlands v. (Cal.!.. 36 (Wash.)

366 Superior Court of Sacramento County, Hol- Washington Iron Works Co., Baker v. brook, Merrill & Stetson v. (Cal.)... 936

(Wash.)

642 Superior Court of San Diego, Bank of Es- Washington Rock-Plaster Co. v. Johnson condido v. (Cal.).. 211 (Wash.)

115 Superior Court of Snohomish County, State Washington Southern R. Co., Miller v. v. (Wash.).. 644 (Wash.)

673 Sutton v. City of Snohomish (Wash.). 273 Watrous. Van Horne v. (Wash.).

136 Sutton, Pike v. (Colo. Sup.). ..1081 Wax's Estate, In re (Cal.).

624 Sweeney v. City of Butte (Mont.). 256 Webb v. Stephenson (Wash.).

9.52 Weber, Remington v. (Utah).

822 Tabell, State v. (Wash.). 101 Webster v. Thorndyke (Wash.).

677 Tacoma Box Co., Chase v. (Wash.). 639 Weinstein, Coquard v. (Mont.).

849 Tacoma Mill Co. v. Sherwood (Wash.). 977 Weisse, Chisholm v. (Okl.)...

467 Tannatt, Lichty v. (Wash.)..

200 Welch's Estate, In re, two cases (Cal.). 805 Tarabino v. Nicoli (Colo. App.). 362 Wentworth, Hawke v. Ariz.).

809 Tatum v. Boyd (Wash.).... 639 West, People v. (Cal.).

207 Taylor v. Bleakley (Kan.).

.104.5 | West Coast Grocery Co., Grunewald v. Teale, Kelso v. (Cal.). 948 (Wash.)

964 Territory v. Chicago, R. I. & P. R. Co. Weston, Patrick v. (Colo. Sup.)... ..1083 (Okl.)

389 Wettengel v. City of Denver (Colo. Sup.).. 343 Thatcher v. Crisman (Colo. App.). 887 | Weyerhaeuser v. Fraim (Kan.)..

188 Thiede, People v. (Utah).

837 Weymouth, Port Townsend Nat. Bank v. Thomas, McMahon v. (Cal.). 753 (Wash.)

618 Thompson v. Avery (Utah).

829 Wheeler, Osgood & Co. v. Johnson (Wash.) 115 Thompson, King v. (Okl.). 466 White v. Brooke (Wash.).

237 Thompson, McQuown v. (Colo. App.). 68 | White v. Muzzy (Wash.).

280 Thorburn v. Smith (Wash.). 124 White, Krumdick v. (Cal.).

1006 Thorndyke, Webster v. (Wash.). 677 White, Shamp v. (Cal.)..

537 Tibbals v. 'Iffland (Wash.)... 102 White State v. Wasb.).

160 Times-Mirror Co., Brady v. (Cal.).

209 | Whitman v. Mast, Buford & Burwell Co. Title Guarantee & Trust Co., Barrell v.

(Wash.)

619 (Or.)

992 Whittaker, Mabie v. (Wash.). Title Guarantee & Trust Co., Barrell V. Wich, Sun Fire Office v. (Colo. App.). 587 (Or.) 997 | Wickersham v. Crittenden (Cal.).

602 T. M. Richardson Lumber Co., City of Wickersham v. Crittenden (Cal.). Oklahoma City v. (Okl.). . 386 Wikoff, Tlagar v. (Okl.).

281 Tomlinson, Chicago Lumber Co. v. (Kan.) 694 Wilcox, Culbertson v. (Wash.).

951 Town of Mt. Vernon, La France Fire-En- Wilcox, State v. (Wash.).

368 gine Co. v. (Wash.)..

367 Wilkinson, Atchison, T. & S. F. R. Co. v. Town of Sausalito, People v. (Cal.). 937 (Kan.)

.1013 Travis, Auld v. (Colo App.). 357 | Williams v. Cuneo (Cal.).

207 Trent, Chalmers v. (Utah). 488 / Williams, Sears v. (Wash.).

280 Treweek v. Howard (Cal.).

20 Willman 'Mercantile Co. v. Fussy (Mont.).. 7:8 Trine v. City of Pueblo (Colo. Sup.). 330 Wilson, In re (Utah).

498 Troy, Nelson v. (Wash.).. 974 Wilson, Goodman v. (Kan.).

704 Tscharnig. Cross v. (Or.).... 510 Wilson, State v. (Wash.).

100 Tuck v. Board of Directors of Home for Wimer v. Simmons (Or.l.. Adult Blind (Cal.).. 607 Winters v. Ramsey (Idaho).

193 Turner, Diamond v. (Wash.) 379 Wirters, Herbert v. Mont.).

900 Twinev. Kilgore (Okl.).. 388 Wist, Crawford v. (Or.)....

218

172

603 Page

Page Witt, Worden v. (Idaho).

.1114 Woods, Northwestern Mut. Life Ins. Co. v. Wolverton v. Exchange Nat. Bank of Spo

(Kan.)

189 kane (Wash.).. 247 Woolery, Harker v. (Wash.).

100) Wolverton, Exchange Nat. Bank of Spo- Woolery, La Selle v. (Wash.).

663 kane y. (Wash.). 248 Woolery, Mayer v. (Wash.).

133 Wong Yon Ting. Ex parte (Cal.). 627 | Worden v. Witt (Idaho)..

1114 Wood, Lower Kings River Reclamation Wright v. Carson Water Co. (Nev.)

872 Dist., No. 531, v. (Cal.). 634 Wright, People v. (Utah)....

477 Woodbury v. Henningsen (Wash.).

243 Wooding v. Crain (Wash.). 442 Yee Fook Din, People v. (Cal.)....

530 Wooding v. John Wooding Co. (Wash.). 137 Young v. First Nat. Bank of Hailey (Idaho) 557 Woolling Co., Wooding v. (Wash.). 137 Young, Matthews v. (Okl.).

387 Woods, Brown v. (Okl.) 473 | Younger v. Younger (Cal.).

779

REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original.opinions in 36 Pac.' This list does not include cases where an opinion has been filed on the denial of the rehearing.)

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THE

PACIFIC REPORTER.

VOLUME 39.

(26 Or. 589)

without his consent. Chenoweth returned to ALLEN V. AYER et al.

Salem with the deed, and a few days after(Supreme Court of Oregon. Feb. 11, 1895.)

wards Ayer came up from Portland, when Boxa FIDE PURCHASER-WHEN NO'T.

he was informed by Chenoweth that plaintiff Plaintiff left a deed to his land with a

was unwilling to make the trade without furreal-estate broker, who was negotiating for the ther inquiry as to the bonds, and had instructsale of said land, with express instructions not ed him not to deliver the deed until specially to deliver it without plaintiff's consent. Subsequently, the broker delivered the deed, with

authorized. Ayer, however, represented that out plaintiff's knowledge or consent. The gran

he was making the purchase for some easttee never took possession of the land, and ern clients, who were becoming impatient at thereafter sold it to defendant. Held, that de

the delay, and asked permission to take the fendant took no title in the land, although he was a bona fide purchaser.

deed Portland for their inspection, in or

der to satisfy them that the trade was in Appeal from circuit court, Benton county;

progress. Chenoweth, relying upon the honJ. C. Fullerton, Judge.

or and integrity of Ayer, consented, but with Action by Morris Allen against John L.

the express understanding that such consent Ayer and others to cancel a deed. Judgment

was not to be deemed a delivery of the deed, for plaintiff, and defendants appeal. Affirm

but that it was to be returned to Salem, and, ed.

with the bonds which Ayer left with ChenoW. Y. Masters, for appellants. F. A. Chen- weth, deposited in some bank until plaintiff oweth, for respondent.

should determine whether or not he would

make a trade. Ayer failed to comply with BEAN, C. J. This is a suit to set aside the agreement, and, without the knowledge and cancel a deed from the plaintiff to one or consent either of plaintiff or Chenoweth, John L. Ayer, and also a deed from Ayer to placed the deed on record in Benton county, defendant Long. The material facts, as dis- and a short time afterwards traded 80 acres closed by the testimony, are that in July, of the land for a house and lot in or near 1893, the plaintiff listed for sale with Judge Portland, to the defendant Long, who claims Chenoweth, who was then doing business as to be an innocent purchaser for value, and a real-estate agent at Salem, a farm in Ben- without notice. After consummating this ton county, upon which he then, and has trade, Ayer immediately left the state, and ever since, resided, consisting of 576 acres. has since remained away. The plaintiff had A few days thereafter, Chenoweth received no knowledge of the delivery or recording of from Ayer an offer, in behalf of an undis- the deed, or receipt of the bonds by Chenoclosed principal, of $4,500 in bonds of the weth, until after the sale to Long, and never New England National Building, Loan & in any way ratified such sale, or acquiesced Investment Association, for 227 acres of the therein. The bonds which Ayer proposed to land, and, being favorably impressed with exchange for the land proved to have been the proposition, in company with one Min- illegally issued, and being, therefore, of no ton, who was interested with him in the pro- value, were returned to his agent before this posed sale, drove out to plaintiff's residence, suit was commenced. The two leading quessome miles from Salem, to consult him about tions in the case are: (1) Did the delivery of the matter; but plaintiff refused to make the the deed to Ayer by Chenoweth, under the proposed trade until he could be satisfied of circumstances detailed, pass the title? And the validity and value of the bonds so offered. (2) if not, did the defendant Long obtain a tiHowever, at the request of Chenoweth, and tle to the 80 acres by his purchase from Ayer for convenience in case the trade should be without notice of the manner in which posconsummated, plaintiff executed and deliv- session of the deed was obtained ? cred to him a deed for the property, in which It is elementary law that the delivery of a Ayer was named as grantee, but with ex- deed by the consent or with the acquiescence press instructions not to deliver it to Ayer of the grantor is essential to pass title. 1

v.39p.no.1-1

. 39

Devl. Deeds, § 260. Without such a deliv- John v. Hatfield, 84 Ind. 75; Ford v. James, ery, it is ineffectual, although it may have 2 Abb. Dec. 159; Chipman v. Tucker, 38 been executed in due form, spread upon the Wis. 43. Where the title to land passes, records, and be in the actual possession of though obtained by fraud, and the deed is the grantee. While no specific formalities therefore voidable, one who purchases from are necessary to constitute a delivery, it is the grantee in good faith, and without noessential that the grantor must consent, ei- tice, will be protected, because he had a title ther expressly or impliedly, that the deed which he could and did convey; but, when sball pass irrevocably from his control. And the deed was never in fact delivered, the it is said that "a deed delivered without the grantee can convey no title, for the protection knowledge, consent, or acquiescence of the of which the plea of a bona fide purchaser grantor is no more effectual to pass title to can be invoked. It necessarily follows that the grantee than if it were a total forgery, | Long obtained no title, because Ayer had although the instrument may be spread upon none which he could convey. Nor is there the record." Henry v. Carson, 96 Ind. 422. any room, under the facts in this case, for an Now in this case there was manifestly no application of the doctrine of estoppel. It such delivery of the deed to Ayer as would would be unreasonable, and at variance with pass the title to him. It was left with Cheno- the facts, to impute a want of diligence to weth, who was simply a real-estate broker, the plaintiff, or negligence in depositing the with express instructions from plaintiff not deed with Judge Chenoweth to await the to deliver it until directed by him. Until so result of his inquiry concerning the bonds instructed, Chenoweth had no authority to offered by Ayer. He and his wife resided in deliver the deed, and it was a mere scroll in the country, probably several miles from an his hands, of no more effect than so much officer authorized to take acknowledgments blank paper. When, therefore, Ayer obtained of deeds; and he and Chenoweth both were possession without the knowledge or consent satisfied that the inquiry would result favorof the plaintiff, no estate passed to him there- ably as to the validity and value of the by, because the delivery was not only with- bonds, and the trade ultimately be consumout the assent, but against the express will, mated. Under these circumstances it was of the grantor; and as his assent is essential but natural that the deed should be preparto a delivery, and a delivery is necessary to ed and executed ready for delivery while pass title, it requires no argument or citation Chenoweth and Minton, who was a notary of authorities to show that Ayer acquired public, were at plaintiff's residence; and cerno title by the deed.

tainly negligence cannot be imputed to the But it is contended that Long is entitled to plaintiff for that reason, or because he deprotection as a bona fide purchaser without posited the deed with Chenoweth to await the notice. We fully recognize the favorable po- result of the proposed trade. The plaintiff sition bona fide purchasers for a valuable remained in possession of the property, and consideration, and without notice, occupy in was wholly ignorant of the fact that the a court of equity; but we know of no case deed had been delivered or recorded until which holds that a party named as grantee long after the purchase by the defendant in a deed, who obtains possession of it with- Long, and did not by any act or conduct of out the knowledge, consent, or acquiescence bis lead the purchaser to do what he would of the grantor, can convey a title to an in- not have otherwise done. There are some nocent purchaser, who may have been misled authorities which hold that an innocent purby seeing the deed in his possession or on chaser from one in possession of land under record, while the grantor remains in posses- an apparently perfect title will be protected, sion of the land, unless the grantor has in although his grantor obtained possession of some way estopped himself from questioning the deed under which he claims to hold withthe validity of the deed. This question was out the knowledge or consent of his immedipresented and decided in Everts v. Agnes, 4 ate vendor. Of such are the cases of Quick Wis. 336. In that case the deed was left v. Milligan, 108 Ind. 419, 9 N. E. 392; Blight with Zettler, with instructions not to deliver V. Schenck, 10 Pa. St. 253. But these cases it until certain securities should be given by proceed upon the theory that one who suffers Agnes. Agnes induced Zettler to deliver it another to remain in the actual possession without the securities, and, after placing it of land belonging to him, under an apparenton record, sold the land to Swist, who was ly perfect deed, estopped from questioning an innocent purchaser for value, without no- the validity of the title as against an innotice. The court held, however, that Agnes cent purchaser from the person in possession. obtained no title, and therefore could not No such question is here presented, because convey any by his deed to Swift. The same Ayer was not in possession of the land at question was afterwards reconsidered and the time he sold to Long, or at any other affirmed in Everts v. Agnes, 6 Wis. 457. To time, and hence the authorities referred to the same effect are Harkreader v. Clayton, are not in point. The decree of the court 56 Miss. 383; Henry v. Carson, 96 Ind. 412; below is therefore aflirmed.

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