Hedding v. Schauble

Taylor, C.

This is an action in ejectment involving the same property that was involved in the case of Schauble v. Hedding, 138 Minn. 187 , 164 N. W. 808 . In that action Mrs. Schauble sought to recover possession of the property from Mrs. Hedding, but, before the action was finally determined, Mrs. Hedding’s tenant moved out of the building leaving it vacant, whereupon Mrs. Schauble moved in and is now in possession. The present action followed. The trial court directed a verdict for plaintiff and defendant appeals from an order denying a new trial

■Considerable evidence seems to have been presented in the former case, which was not presented in the present case, and hence is not now before us. The case turns on the validity or invalidity of a deed executed April 8, 1914, and recorded April 9,-1914, purporting to convey the property from the defendant to the plaintiff. The deed was put in evidence by plaintiff, and, being properly signed, witnessed and acknowledged, was prima facie evidence that it had' been duly executed and delivered. Section 8425, G. S. 1913; Tucker v. Helgren, 102 Minn. 382 , 113 N. W. 912 ; Murray v. Foskett, 114 Minn. 44 , 130 N. W. 14 .

*97 It is conceded, however, that when defendant signed and acknowledged the deed it contained the name of no grantee; that defendant gave the deed in this condition to W. H. Hatton, a real estate broker in the city of St. Paul; that on the next day Hatton presented the deed to plaintiff’s husband in the city of Minneapolis who noted the fact that it contained no grantee; that Hatton asked what name to insert and was told byplamiiff’s husband to insert plaintiff’s name; that Hatton took a pen and wrote plaintiff’s name in the space left for the name of the grantee and then delivered the deed to plaintiff’s husband, and that plaintiff’s husband was plaintiff’s representative and agent in all the matters involved herein. At the trial defendant attempted to show the instructions she gave Hatton at the time she delivered the incomplete deed to him, but these instructions were excluded on plaintiff’s objection that they were not admissible against her, because they had not been communicated to her. Defendant then offered to prove that at the time she gave the deed to Hatton she instructed him to keep it and not let it go out of his possession without orders from her, and that she had never given him permission to insert the name of a grantee in the deed or to part with the possession of. it. The evidence so proffered was also excluded on plaintiff’s objection. Whether the court erred in these rulings is the principal question argued.

The deed was a nullity until the name of a grantee was lawfully inserted therein. Board of Education v. Hughes, 118 Minn. 404 , 136 N. W. 1095 , 41 L.R.A.(N.S.) 637; Werntz v. Bolen, 135 Minn. 449 , 161 N. W. 155 ; Schauble v. Hedding, 138 Minn. 187 , 164 N. W. 808 . It being admitted that, after the deed had been signed and acknowledged and had passed out of the hands of defendant, it had been changed by inserting the name of plaintiff as grantee, and that plaintiff through her husband, who acted as her representative and agent, was a party to the making of this change and had full knowledge of it, the prima facie presumption created by the statute in support of a duly-acknowledged instrument was completely overcome, and it was incumbent on plaintiff to show that Hatton had actual or apparent authority to insert her name in the deed. 'That Hatton assumed to have and exercise such authority is, as against defendant, no evidence that he possessed it. Graves v. Horton, 38 Minn. 66 , 35 N. W. 568 ; Gude v. *98 Exchange Fire Ins. Co. 53 Minn. 220 , 54 N. W. 1117 ; Halverson v. Chicago, M. & St. P. R. Co. 57 Minn. 142 , 58 N. W. 871 ; Burchard v. Hull, 71 Minn. 430 , 74 N. W. 163 ; First Nat. Bank v. St. Anthony & D. Ele. Co. 103 Minn. 82 , 114 N. W. 265 . Plaintiff not only offered no evidence to prove that Hatton had either actual or apparent authority to insert her name in the deed, hut insists that the fact that he lacked such authority cannot he proved as against her because the instructions given him were not communicated to her. Hnless there were facts and circumstances showing apparent authority in Hatton to complete and deliver the deed which were sufficient to estop defendant from denying his authority, plaintiff was bound to find out the nature and extent of his authority and acted at her peril if she failed to do so. Dispatch Printing Co. v. National Bank of Commerce, 109 Minn. 440 , 124 N. W. 236 , 50 L.R.A.(N.S.) 74; Ermentrout v. Girard F. & M. Ins. Co. 63 Minn. 305 , 65 N. W. 635 , 30 L.R.A. 346 , 56 Am. St. 481.

There is nothing in the record to show that negotiations concerning this property were in progress between plaintiff and defendant, or'to show that defendant had ever employed or authorized Hatton to do anything whatever in respect to a sale or exchange of this property,- or to transact -any business whatever on her behalf with plaintiff for any one else. We search the record in vain for any facts or circumstances tending to show that Hatton had apparent authority to -complete or deliver this deed, and there is no basis for the claim that defendant w-as estopped from denying his -authority.-

The validity -of the deed was not established, and the excluded evidence w-as clearly -admissible. It follows that the order appealed from must be and is reversed.