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Prosser v. Nickolay

Supreme Court of Wisconsin
Jun 22, 1946
23 N.W.2d 403 (Wis. 1946)

Opinion

May 22, 1946. —

June 22, 1946.

APPEAL from a judgment of the circuit court for Outagamie county: J. R. McCARTHY, Circuit Judge. Affirmed

For the appellants there was a brief by Benton, Bosser, Becker Parnell, attorneys, and David L. Fulton of counsel, all of Appleton, and oral argument by Mr. Fulton and Mr. Homer H. Benton.

For the respondent there was a brief by Bradford Derber of Appleton, and oral argument by Allen S. Bradford.


Action commenced April 9, 1945, to set aside a conveyance. From a judgment dismissing their complaint, plaintiffs appeal.

On October 11, 1944, Jacob Nickolay caused Michael Burns, an attorney residing at Seymour, to be called to his home. He instructed Mr. Burns to prepare a deed conveying certain property to his wife, Walburga Nickolay. Mr. Burns prepared the deed and it was executed by Mr. Nickolay at his home in the presence of Mr. Burns and Hattie Marien, who subscribed their names as witnesses. Mr. Burns took the acknowledgment as a notary public. There was no consideration other than love and affection.

At the time the instrument was executed and acknowledged it contained no description of the property intended to be conveyed. The legal description of the premises was not available and the grantor desired to execute the deed at that time. He was in failing health and apparently feared that if the matter were deferred, his death might intervene. He instructed Mr. Burns to procure the proper description and insert it in the instrument, cause it to be recorded, and deliver it to the grantee. Mr. Burns took the deed to his office and inserted the description in it on October 13, 1944. Four days later the grantor died. Shortly thereafter the deed was recorded and delivered to Walburga Nickolay.

This action is brought by Chas. R. Prosser and T. A. Nickodem, as executors of the will of the grantor, and John Nickolay, as a beneficiary under the will.


The appellants submit two contentions against the validity of the conveyance: (1) The execution of the instrument was a nullity in that no description was contained therein at the time and could not thereafter be inserted pursuant to parol authority; (2) there was no valid delivery prior to the grantor's death.

In support of their first contention the appellants cite an imposing array of authorities. They are from other jurisdictions, however, and are not in accord with the rule in this state. Our cases hold that parol authority may be given to complete a conveyance by later inserting a material portion omitted at the time of execution and acknowledgment, and that when it is inserted no further execution is required. Friend v. Yahr (1905), 126 Wis. 291, 104 N.W. 997; Van Etta v. Evenson (1871), 28 Wis. 33.

Our decisions likewise dispose of the second contention. It is clearly established that a deed delivered to a third person with instructions to record it and deliver it to the grantee after the grantor's death becomes effective upon delivery to the third person who thereafter holds as trustee for the grantee. Lawrence v. Children's Home Aid Society (1939), 231 Wis. 44, 285 N.W. 415; Hamblyn v. Crase (1928), 194 Wis. 628, 217 N.W. 311; Kolber v. Steinhafel (1926), 190 Wis. 468, 209 N.W. 595; Albright v. Albright (1888), 70 Wis. 528, 36 N.W. 254. We may concede that had the grantor, Jacob Nickolay, died before completion of the conveyance by his attorney, Michael Burns, a question might have arisen as to whether Burns' authority to complete the conveyance extended beyond Jacob Nickolay's death. The conveyance was completed prior to his death, however, and no such question is presented. After the deed had been properly completed by Mr. Burns the transfer of title was just as effectual as it would have been had he been delivered a fully completed instrument in the first instance.

The appellants argue that the parol authority given to Mr. Burns could have been revoked by the grantor and that consequently the grantor had not absolutely parted with control of the deed. They reason from this premise that there was no complete delivery prior to the grantor's death. Compare Ward v. Russell (1904), 121 Wis. 77, 98 N.W. 939; Zimmerman v. Zimmerman (1917), 165 Wis. 146, 161 N.W. 369; Williams v. Daubner (1899), 103 Wis. 521, 79 N.W. 748; Prutsman v. Baker (1872), 30 Wis. 644. This argument overlooks the important fact that the deed was completed by Mr. Burns prior to the grantor's death. After the completion any revocation of his authority to act in that behalf was out of the question.

By the Court. — Judgment affirmed.


Summaries of

Prosser v. Nickolay

Supreme Court of Wisconsin
Jun 22, 1946
23 N.W.2d 403 (Wis. 1946)
Case details for

Prosser v. Nickolay

Case Details

Full title:PROSSER and others, Appellants, vs. NICKOLAY, Respondent

Court:Supreme Court of Wisconsin

Date published: Jun 22, 1946

Citations

23 N.W.2d 403 (Wis. 1946)
23 N.W.2d 403

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