Gould v. Wise

Citations

• 97 Cal. 532
• 32 P. 576
• 1893 Cal. LEXIS 587

Syllabus

<p>Deed — Delivery — Assent oe Grantor. — Delivery is the force that vitalizes an instrument; and a deed can take no effect until delivery, which is dependent upon the assent of the grantor.</p> <p>Id. — Clandestine Possession oe Grantee—Non-euleillment oe Agreed Conditions—Title. — Where a grantee named in a deed secures possession thereof clandestinely, or in any manner without a fulfillment of the agreed conditions, or consent of the grantor to a delivery, there is no delivery of the deed, and no title passes to the grantee.</p> <p>Id. — Fraudulent Mortgage by Grantee before Delivery — Mortgage to Grantor eor Purchase-money — Priority. — Where an intending purchaser of land contracted with the owner thereof for its purchase, agreeing to pay part of the purchase-money in cash, and to execute a mortgage for the balance, and after the deed was signed and acknowledged, and while it was lying upon the table of a conveyancer, who was engaged in preparing the notes and mortgage, which were to be delivered contemporaneously with the deed, the purchaser took it from the room, and without the knowledge of the grantor negotiated a loan thereon from a third party, executing a mortgage therefor, and about a half-hour thereafter he returned to the grantor and signed the mortgage and notes: held, that the delivery was not complete until the mortgage and notes to the grantor were signed, and that the mortgage of the grantee created no lien upon the property as against the grantor.</p> <p>Id.—Negligence of Grantor — Estoppel — Non-delivery oe Deed.—. In such case the act of the grantor in allowing the deed to be removed from the room before the execution of the mortgage, even conceding it to be negligence on his part, was not such degree of negligence as to create an estoppel against him in favor of the mortgagee of the grantee without notice to prevent a plea of non-delivery of the deed to the grantee.</p>