#### Zoerb, Appellant, vs. Paetz, Administrator, and others, Respondents.

*September S*—

November 27, *1908.*

*Deeds: Delivery: Escrow: Statute of frauds.*

1. It is tlie intent to pass title which makes the delivery of a deed-effective, although mere mental reservation on the part of the-grantor cannot affect that question.

2. Where an agreement, as understood hy both parties, is that delivery of a deed is not to he made nor title pass until conditions, precedent or concurrent, are performed, a mere manual *60tradition of the deed under the mistaken supposition that these prerequisites had been fulfilled, when in fact they had not, will not pass title irrevocably.

.3. Where neither party to an attempted transfer of title to lands had definite knowledge of the character of the papers or agreements necessary to carry out their understanding, hut mutually relied upon the scrivener to decide that question and prepare the papers, the intention of the scrivener as to the papers necessary to complete the transaction is in legal effect the intention of the parties, and his forgetfulness and consequent mistake in handing over a deed before a material part of the transaction had been performed is the forgetfulness and mistake of both parties, for the correction of which a court of equity will afford relief by cancellation of the deed.

■4. A vendor, who proposed to convey land in consideration of the purchaser’s agreement to support the vendor, delivered the fully executed deed to the scrivener, who drew the necessary papers to carry out the agreement of the parties, with oral direction to deliver the same to the purchaser when his wife had joined in the bond and mortgage securing such support. Before the wife had signed the vendor died and thereafter the scrivener handed the deed to the purchaser. *JSeld,*that the delivery of the deed to the scrivener did not constitute a valid delivery in escrow.

,5. In such case, even if there could be a valid escrow, it was ineffectual in the absence of a valid written agreement to convey the land, such as would satisfy the statute of frauds, deposited with the deed.

Appeal from a judgment of tbe circuit court for Kewau-nee county: Michael KikwaN, Circuit Judge.

*Affirmed.*

Two equitable actions • were consolidated and tried together. The first action was brought by Paetz, as administrator of the estate of one Louisa Kautz, deceased, to set aside and cancel a deed of lands executed by her to *Zoerb*a week before her death, on the ground that the deed was obtained by fraud and was never in fact delivered. The second action was afterward brought by Zoerb, alleging a mutual mistake in the description of part of the lands included in the deed and praying reformation thereof in this respect. In the latter action the defendant put iri a counterclaim containing substantially the allegations of his complaint in the *61first action. To tbis counterclaim a reply was served, and tbe two actions were tben consolidated. All tbe beirs at law of Mrs. Kautz are parties to tbe consolidated action. There was very little material dispute as to tbe facts. Louisa Kautz, tbe intestate, was an aged and infirm widow, owning forty acres of farm land in Manitowoc county and eighty acres in Kewaunee, and living alone upon tbe Manitowoc land, which was her homestead, and possessing household furniture, stock, and farming implements. Her beirs consisted of a number of nephews and nieces and children pf deceased nephews and nieces. The plaintiff was a son of one of the nieces and was a married man living in the town of Menominee, Michigan. He came to Mrs. Kautz’s home from Menominee in the latter part of June, 1905, and remained there several days, his wife remaining in Michigan. During this time negotiations were had between him and Mrs. Kautz looking towards the deeding of the lands in question to *Zoerb*in consideration of an agreement to support and care for Mrs. Kautz during her life. These negotiations resulted in the calling in of Adolph Ohloupek, a lawyer and notary public residing at Mishicott, eight miles distant, on July 3, 1905, to draw the papers necessary to carry out the agreement which had been made. Neither of the parties knew what form the papers were to take, but both relied on Mr. ■ Ohloupek to draw such papers as were necessary to give effect to the agreement. Mr. Ohloupek came to the house, and, after talking with the parties, advised the making of a deed of the lands and a bill of sale of the personal property of the homestead to *Zoerb*and the giving back of a bond for care and support secured by .mortgage on the lands conveyed. This being satisfactory to the parties he proceeded to draw the papers. He determined in his own mind that it would be better to have Mrs. Zoerb join in executing the bond and mortgage with her husband, but did not inform the parties of this conclusion at the time. Having learned the details of the arrangement he drew a bill of sale of the *62personal property and a warranty deed of tbe lands to *Zoerb*(inserting, however, by mistake an erroneous description of tbe Kewaunee county lands) and a bond for care and support in tbe penal sum of $3,000, in form making both *Zoerb*and bis wife promisors, and a mortgage on tbe lands' also to be executed by *Zoerb*and bis wife to secure performance of the conditions of tbe bond. Tbe conditions were numerous, and provided for support and personal care in sickness and health, for board in case she chose to board with tbe Zoerbs, and for certain quantities of provisions annually in case she chose to board herself, for a certain cash payment each year, for tbe use by her of certain rooms in tbe bouse, for tbe cleaning and scrubbing of those rooms, for the furnishing of firewood' and water, and other things. Tbe consideration named in tbe deed was one dollar and other valuable considerations. When tbe papers were completed Chloupek temporarily forgot that Mrs. Zoerb was to sign them, and bad Mrs. Kautz sign tbe deed and bill of sale and *Mr. Zoerb*the bond and mortgage, and all tbe papers were formally delivered. *Zoerb*paid tbe dollar, and both parties supposed that tbe transaction was complete. Tbe parties did not separate, however, but remained in conversation for nearly or quite half an hour, when Chloupek suddenly remembered that be bad intended to have Mrs. Zoerb sign tbe bond and mortgage, and be immediately called attention to tbe omission and stated that, though not absolutely necessary, still be bad intended that she should sign, and be thought it safer to have her do so, and advised that tbe deed, bond, and mortgage be placed in bis bands to be held until Mrs. Zoerb should come from Michigan and sign tbe bond and mortgage with her husband, when be would deliver tbe papers. Both tbe parties readily agreed to this, and Chloupek took back all tbe papers, except tbe bill of sale, to bis home. Mrs. Kautz died on tbe morning of July 10th following, and *Mr.*and Mrs. Zoerb came to Chloupek’s bouse in tbe afternoon of the'same day, and Mrs. Zoerb then offered to sign *63the bond and mortgage, but Chloupek declined to allow her to do so because of Mrs. Kautz’s death. Chloupek then; de- . livered the deed to *Zoerb.*The bill of sale remained in *Zoerb’s*hands from the time of its delivery on July 3d. The bond and mortgage were retained by Chloupek and were put in the hands of 'the clerk of court upon the trial. After the transaction of July 3d *Zoerb*remained at Mrs. Kautz’s homestead doing chores until July 5th, and then returned to Michigan to get his wife, leaving a person on the farm to do the chores and help Mrs. Kautz. After Mrs. Kautz’s death *Zoerb •*moved into the homestead and took' possession of the land in Kewaunee county, and has since retained such possession. The court found that Mrs. Kautz was competent to transact business, that there was no fraud •or overreaching, but that there was no complete delivery of the deed, or, if there was, that *Zoerb*was estopped by his conduct in consenting to the subsequent holding of the papers by Chloupek to claim that there had been a delivery, and ■denied *Zoerb*any relief. The court further held that the' respondents were entitled to a cancellation of the deed, but he stayed the execution of the judgment for sixty days in •order to give *Zoerb*time to bring an action for specific performance if he were so advised, not deciding, however, whether he was entitled to relief in such an action because the issue was not presented by the pleadings. Erom judgment in accordance with the findings *Zoerb*appeals.

Eor the appellant there was a brief by *Burke & Graiie*and *G. U. Sedgwick,*and oral argument by *Isaac Graiie.*

Eor the respondents there was a brief by *J. S. Anderson,*■attorney, and *L. J. Nash,*of counsel, and oral argument by *Mr. Anderson.*

The following opinion was filed September 29, 1908:

WiNsnow, C. J.

The appellant strenuously contends that the first delivery of the deed to him was an absolute delivery, which passed title, and that he could not be divested *64of title by merely banding tbe same back to the scrivener, nor by anything short of the execution and delivery of another deed by himself. As a general proposition it is true that delivery of a deed with intent to pass title does pass the title, and that the surrender or cancellation of such deed does not revest the title in the vendor. *Slaughter v. Bernards,*97 Wis. 184, 72 N. W. 917. No one would contend, however, that the handing over of a deed merely for purposes of examination, or by .mistake supposing it to bo another paper, would carry any title to the grantee, although there would in both cases be manual tradition of the document to the grantee. It is the intent to pass title which makes the delivery effective, although mere mental reservation on the part of the grantor cannot affect the question. *Rogers v. Rogers,*53 Wis. 36, 10 N. W. 2. When, however, the agreement as understood by both parties is that delivery is not to be made nor title pass until precedent or concurrent conditions are performed or agreements made by or on behalf of the grantee, a mere manual tradition of the deed under the mistaken supposition that these prerequisites had been fulfilled, when in fact they had not, will not pass title irrevocably. In such case the whole transaction is incomplete, and, as in other cases of mutual and material mistake, a court of equity has ample power to cancel the apparent conveyance in the same manner as it may cancel other instruments under such circumstances. *De Voin v. De Voin,*76 Wis. 66, 44 N. W. 839.

In the present case neither party had definite knowledge of the character of the papers or agreements necessary tO' carry out their understanding, but they mutually relied on Ohloupek to decide that question and prepare the papers. Chloupek decided that, in order to render the transaction entirely safe for Mrs. Kautz, the bond and mortgage should be signed by Mrs. Zoerb as well as by her husband, and this course was manifestly desirable because of the many pro*65visions in tbe bond requiring personal service and attention which could only be properly performed by a woman. lie drew the papers intending that she should so sign and that the transaction should not be completed until she did sign. Under the circumstances his intention was in legal effect the intention of both parties, and his forgetfulness and consequent mistake in handing over the papers before a material part of the transaction had been performed was the forgetfulness and mistake of both parties, for the correction of which a court of equity will afford relief by cancellation of the deed.

But it is contended that the subsequent delivery of the papers to Chloupelc, with directions to deliver the deed to *Zoerb*when his wife had executed the bond and mortgage, constitute a valid delivery in escrow. This contention is fully met and answered by reference to the case of *Campbell v.*Thomas, 42 Wis. 431, which presented practically the. same question. Granting that there could he a valid escrow-upon such a condition as is here presented, still there was no valid written agreement to convey the land, such as would satisfy the statute of frauds, deposited with the deed. This was held necessary in the case cited, and that view is decisive here.

There was plainly no error prejudicial to the plaintiff in the conclusions of the court, and the judgment must be affirmed.

*By the Court.*— It is so ordered.

A motion for a rehearing was denied November 27, 1908.