Allen v. Allen

The instrument, executed and acknowledged by 'Willis G. Baker and wife, in which these persons and S. B. Loye were named as parties of the first part, was fatally defective as a conveyance of xeal property, because no one was therein named as of the second part, and no person could take anything by it. In every grant there must be a grantor, a grantee, and a thing granted, and a deed wanting in either essential is invalid. A grantee is as necessary to the validity of a grant as that there should be a grantor or a thing granted. Garnett v. Garnett, 7 T. B. Mon. 545; Whitaker v. Miller, 83 Ill. 381. When these defendants, by warranty deed with full covenants, ■except as to a particularly described mortgage, conveyed the premises in question to plaintiff, they had not been invested with the legal title, for that remained in Baker when he failed in an attempt to ■convey. For this reason there was a breach in defendant’s covenant •of seisin, for “seisin” means, ex vi termini, the whole legal title, and nothing short of it will satisfy. A covenant of seisin is broken if the covenantor has not the possession, the right of possession, and the complete legal title. Fitzhugh v. Croghan, 2 J. J. Marsh. 429; Lockwood v. Sturdevant, 6 Conn. 373. And the covenant was broken upon the execution of defendants’ deed, vesting in the plaintiff an immediate cause of action. Kimball v. Bryant, 25 Minn. 496. The court below seems to have held that the legal title to the premises passed from Baker to Loye upon the execution of the purported deed by Mr. and Mrs. Baker, and this view must have been based upon the conclusion of the court that the name of the real grantee could be ascertained from an inspection of the deed itself, in connection with an indorsement on the' back, or outside, which indicated that Baker and his wife were the sole grantors, and Loye the grantee; or upon parol testimony, improperly received for that purpose, to the effect that by mistake Loye was named as one of the parties of the *465first part, when he was actually of the second part, and should have been so designated; or both. There was nothing whatsoever in the body of the instrument from which it could have been inferred, even, that Loye was not just what he was expressly stated to be, — one of the grantors, — save the bare fact that he did not join in its execution, and that a grantee was not named therein. And the indorsement upon the back was no part of the deed, nor should it have been referred to in aid of or to cure a defect in one of its essentials. The parties, grantor and grantee, and the thing or property granted, must be determined from the contents of an instrument, not from its label. Two defects would have impressed themselves, alike or equally, upon the mind of the ordinary man when reading the document, — one, that Loye, a grantor, had neglected to join in its execution; the other, that there had been a complete failure to name the grantee. Nothing else would have been suggested or discovered. We are convinced that, without the indorsement and a knowledge of the circumstances, no one would have felt warranted in asserting that Loye was the intended grantee. Parol testimony that Baker was the sole owner of the property described; that he sold it to Loye; that it was the intention of all parties to have Loye named as the party of the second part in the conveyance; and that a mistake was made by the party who drew the same, — should not have been received for the purpose of showing that Loye actually acquired the legal title by virtue of the defective deed, for it could not have that effect. If it could, an error in or omission of the name of the grantor or grantee, or an error in or omission of the description of the property intended to be conveyed, could be rectified or wholly supplied with the same class of testimony in an action of this character. A legal title to real property cannot be established by parol.

Judgment reversed.

(Opinion published 51 N. W. Rep. 473.)