This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
When the instrument must be executed by the grantor, and cannot be executed through an agent, as in some states is the case in a conveyance by a married woman, blanks in the conveyance cannot be filled by a third person acting under oral, or even sealed, authority. Drury v. Foster, 2 Wall. (U. S.) 24 17 L. Ed. 780.
69. Post, Sec. 461, note 57.
In Creveling v. Banta, 138 Iowa 47, 115 N. W. 598, Ladd, C. J. remarked as follows: "What was evidently feared by Dillon J., in
Simms v. Hervey, 19 Iowa, 273, 297, if this rule were adopted has transpired, and deeds or mortgages to land are now "floated" almost as readily as commercial paper, and the name of the grantee inserted when it (sic) finds an owner who concluding to retain the land elects to insert his name as grantee. The practice, while not conserving a single laudable purpose, has proven an efficient help in the perpetration of fraud and the concealment of property from the pursuit of creditors." the instrument to the grantee. The former view appears to he excluded by the difficulty of conceiving of the legal delivery as a conveyance of an instrument which lacks the name of a grantee. Such an instrument is necessarily incapable of legal operation, and to assert that such an instrument has been delivered, that is, that an intention has been indicated that it shall immediately be legally operative,70 appears to involve an absolute incompatibility of ideas. In accord with this latter view are the occasional decisions or judicial statements that the grantee's name must be inserted by the agent before he "delivers" the instrument, or before he delivers it to the grantee,71 this evidently involving the view that it is the physical transfer by the agent, and not the transfer to the agent, which operates as delivery. On the other hand there are decisions that an agent to whom the instrument is handed, with authority to insert such name as he may choose as that of the grantee, may insert his own name, and thereby render the instrument operative in his favor,72 and these do not accord with the view that the instrument cannot be delivered until the grantee's name is inserted,
70. Post, Sec. 461.
71. Allen v. Withrow, 110 L. S. 119, 28 L. Ed. 90; Osby v. Reynolds, 260 111. 576. 103 N. E. 556; Carr v. Mccolgan, 100 Md. 462, 476, 60 Atl. 606; Derry v. Fielder, 216 Mo. 176, 115 S. W. 412; Chauncey v. Arnold, 24 N. Y. 330; Cribben v. Deal, 21 Ore. 211, 28 Am. St. Rep. 746, 27 Pac. 1046; Telschow v. Quiggle. 74 Ore. 105, 145 Pac. 11; Duncan v. Hodges, 4 Mccord (S, C) 239, 17 Am. Dec. 734. See Lockwood v. Bassett, 49 Mich. 546, 14 N. W. 492.
In Halvorsen v Mullin, 179 Iowa 293, 156 N W. 289, the. view is expressed that the manual transfer of the instrument to the agent involves in effect a delivery conditioned upon the filling of the blank (see post, Sec. 462), so that the instrument is to be regarded, so soon as the blank is filled, as having been delivered at the time of such transfer. This does not, however, obviate the difficulty involved in the idea of even the conditional delivery of a conveyance lacking a grantee.
72. Burk v. Johnson, 146 Fed. 209; Augustine v. Schmitz, 145 Iowa 591. 124 N. W. 607; Einstein v. Holladay-koltz Land & Lumber Co., 132 Mo. App. 82, 111 S. W. 859 .
Even though a merely oral authority to insert the name of the grantee, and to make delivery of the instrument when thus completed, be regarded as insufficient, a view which, though not in accord with the weight of authority in this country, is conceived to be the sounder on principle, nevertheless an instrument completed and delivered under such an insufficient authority might in some cases be supported on the theory of estoppel, in favor either of the person whosp name is inserted in the instrument,74 or in favor of a bona fide purchaser from him for value.75 One claiming under a conveyance has frequently no means of determining whether the grantee's name was inserted before or after its execution, and unless he is to be protected on the principle of estoppel, there is little safety in purchasing property in any jurisdiction where the validity of an oral authority to insert the grantee's name is denied.
73. Post, Sec. 461, notes 53-58.
74. Quinn v. Brown, 71 Iowa 376, 34 N. W. 13; Mccleery v. Wakefield, 76 Iowa, 529, 2 L. R. A. 529, 41 N. W. 210; State v. Matthews, 44 Kan. 596, 10 L. R. A. 308, 25 Pac. 36; Phelps v. Sullivan, 140 Mass. 36, 54 Am. Rep. 442, 2 N. E. 121; Pence v. Arbuckle, 22 Minn. 417; Garland v. Wells, 15 Neb. 298, 18 N. W. 132. See El Dorado Exchange Nat. Bank v. Fleming, 63 Kan. 139, 65 Pac. 213, and post, this section, note 77.
75. Swartz v. Ballou, 47 Iowa, Hall v. Kary, 133 Iowa, 468, 119 Am. St. Rep. 639, 110 N. W. 930; Ragsdale v. Robinson, 48 Tex. 379.
In case a blank as to the name of the grantee is tilled by a person who has no authority for the purpose, either oral or in writing, or it is filled in a manner contrary to the directions of the grantor, the conveyance is, it is agreed, invalid as regards a person who is aware of the circumstances of the transaction.76 As regards an innocent grantee or purchaser, on the other hand, it might frequently be valid, on the ground of estoppel77 provided at least he pays value.78 If the grantor chooses to place in the hands of another person an instrument duly signed and sealed by him, but which is otherwise in an incomplete state, and such other exceeds his authority in making the instrument apparently complete, the grantor, and not an innocent purchaser, should be the one to surfer on account thereof. The grantor should be estopped, in such case, to deny that the instrument is his act and deed.79
When the grantor, instead of handing the blank instrument to another, retains it, and it later leaves his custody without his consent, the question whether it is effective in the hands of a bona fide purchaser would seem to depend primarily upon whether the con76. Ayers v. Probasco, 14 Kan. 175; Arguello v. Bours, 67 Cal. 447, 8 Pac. 40; Lund v. Thackery, 18 S. D. 113, 99 N. W. 856; Schintz v. Mcmenamy, 33 Wis. 299.
77. Creveling v. Banta, 138 Iowa, 47, 115 N. W. 598; Augustine v. Schmitz, 145 Iowa, 591, 124 N. W. 617; State v. Matthews, 44 Kan. 596, 10 L. R. A. 308, 25 Pac. 36; Guthrie v. Field, 85 Kan. 58, 116 Pac. 217, 37 L. R. A. (N. S.) 326; Pence v. Ar-buckle, 22 Minn. 417; Garland v. Wells, 15 Neb. 298, 18 N. W. 132; Clemmons v. Mcgeer, 63 Wash. 446, 115 Pac. 1081. But see Barden v. Grace, 167 Ala. 453, 52
So. 425; Vica Valley & C. R. v. Mansfield, 84 Cal. 560, 24 Pac. 145; Whitaker v. Miller, 83 111. 381; Thummel v. Holden, 149 Mo. 677, 51 S. W. 404; Westlake v. Dunn, 184 Mass. 260, 100 Am. St. Rep. 557, 68 N. E. 212; Tel-schow v. Quiggle, 74 Ore. 105, 145 Pac. 11; Swan v. N. B. Australian Co., 2 Hurlst. & Colt. 175.
78. In Van Dyke y. Van Dyke, 119 Ga. 47 S. E. 192, 830, in which the conveyance was regarded as invalid there appears to have been no consideration paid.
79. See the admirable discussion in Ewart, Estoppel, 449, et seq. But the cases referred to duct of the grantor was, in the particular case, lacking in reasonable care.80
- Substitution of other grantee. The question of the validity of a conveyance, the name of the grantee in which was inserted after it left the grantor's hands, in a space left blank for this purpose, was discussed above.81 A question of a somewhat analogous nature concerns the validity of a conveyance, when the name of the grantee was inserted after delivery, not in a space originally left blank for the purpose, but by way of substitution for another name which appeared in the instrument at the time of delivery. Occasionally a purchaser of land, with a view to the saving of expense and trouble, upon reselling the land to another, merely erases his own name and inserts that of the purchaser, so that, when the instrument is recorded, the title appears to have passed direct from his vendor to the last purchaser. Such an alteration, even if made with the consent of both the grantor and grantee, and in the presence of both, cannot operate, it would seem, to divest the title vested by the delivery in the original grantee,82 and the fact that the grantor purports to make a second delivery after the alteration cannot well change the result. To divest one's title to land something more is necessary than a conveyance by his grantor to a third person. It has been said that if the original grantee himself procures the change to be made he cannot thereafter claim title in himself,83 but this is in the latter portion of note 77 supra are opposed to any such notion of estoppel.
80. See 4 Wigmore, Evidence, Sec. 2419; Van Amringe v. Morton 4 Whart. (Pa.) 382; Telschow v. Quiggle, 74 Ore. 105, 145 Pac. 11.
81. Ante, this section, notes 65-80.
82. Gibbs v. Potter, 166 Ind.
471, 9 Ann. Gas. 481, 77 N. E. 942; Garr v. Frye, 225 Mass. 531, 114 N. E. 745.
83. Abbott v. Abbott, 189 111. 488, 82 Am. St. Rep. 472, 59 N. E. 958. The statement appears to have been uncalled for, as the court found that the change was made before delivery.
So, it is submitted, only in so far as the elements of an estoppel are present.84
The substitution of another name as that of the grantee, without the grantor's consent, can obviously not operate to vest title in the person whose name is so substituted.85 One conveying to A cannot, without his consent, be made to convey to B. And likewise the substitution of another name as that of the grantee, without the consent of the original grantee, cannot have such an effect, of divesting the title of the original grantee.86