#### Mary Hilmert and husband vs. Christian.

Covenant : *Deed, effect of alteration in.*

1. The delivery of a fully executed deed to the grantee named therein, has the effect to vest the title absolutely in him, and no act' other than a deed executed by him will operate to transfer such title to another. The subsequent erasure of his name, and insertion of the name of another as grantee, will not have that effect, although done by consent of both grantor and grantee.

2. The person so substituted as grantee, cannot maintain an action upon the covenants of such deed.

3. Covenants in a deed whereby the grantor in terms covenants only “ for his heirs, executors and administrators," omitting the words, “ for himself,” are yet binding upon him.

APPEAL from tbe Circuit Court for *Sheboygan*County.

*105Action by husband and wife for a breach of the covenant of seizin in defendant’s deed to the wife.

The complaint alleges the execution and delivery to the plaintiff, *Mary*Hilmert, of a deed of land, containing the usual covenants of seizin and warranty, and that at the time of its execution and delivery, the defendant was not seized of one third part of the premises, and demands judgment for the damages. Answer, a general denial. On the trial the plaintiffs introduced the record of the deed, and proved the breach of the covenant of seizin, and the amount of the damages.

■On the part of the defendant, *William*Hilmert, sworn as a witness, testified that the name of *Mary Hilmert,*his wife, was first written in the deed as grantee, but his own name was after-wards written above it, and the deed delivered to him, he supposed as his deed. On cross-examination he testified that he was agent for his wife at the time.

The justice who took the acknowledgement and subscribed the deed as a witness, and the other subscribing witness, testified that the deed, when executed, ran to *William Hilmert*as grantee, and they did not remember any erasure in the name of the grantee.

The plaintiff then introduced the original deed, which was admitted against the objections of the defendant.

The deed showed the name “ Mary ” apparently first inserted before the name “ Hilmert ” as grantee, and the name “ "William” appears written over it, both of which being stricken out, the name “ Mary ” is interlined, with a reference thereto at the bottom of the deed as follows: “ It should be Mary by consent of the parties before signing,” all being in the handwriting of the defendant.

The defendant then proved by the register of deeds that the name “ Mary ” and the reference at the bottom were inserted at his office by the grantor, in presence of *William Hilmert.*

The court charged the jury that “ If the jury find that the deed was executed and acknowledged in the name of *Mary Hil-*
      *106
      *mert*and delivered to ber husband for ber, tbe plaintiffs are entitled to recoverthat “ A deed signed, .sealed and delivered to tbe grantee or bis or ber agent, is a good deed to pass tbe title, and a recovery can be bad upon its covenants, even though not witnessed or acknowledged.”

That,* “if the jury find that on tbe 12th day of August, 1868, tbe defendant executed and delivered a conveyance of tbe premises described in tbe complaint, to *William Hilmert,*and not to *Mary Hilmert,*then this action cannot be maintained; and it will make no difference in this action if tbe name of *Yiilliam Hilmert*was struck out and the name of *Mary Hilmert*inserted in its place as grantee in tbe deed, for tbe delivery of tbe deed to *William Hilmert*vested tbe title in him absolutely, and no act less than a deed executed by *Hilmert*could operate to divest him of tbe title. Tbe covenants of seizin in tbe deed run with tbe land.”

That “ tbe alteration of tbe deed after tbe delivery, by erasing-tbe name of the grantee, and inserting tbe name of another as grantee in its place, although done by tbe grantor himself, cannot operate to vest tbe title in tbe land described in tbe deed in that other whose name is so inserted; and it will not alter tbe ease, even though tbe first grantee requests and consents to tbe substitution of tbe name of another party for bis own.”

That “tbe plaintiffs must fail to recover if tbe jury believe tbe deed when delivered, bad both *William*and *Mary*as grantees. ’ ’

Tbe jury found a verdict for tbe plaintiff for tbe value of tbe land of which tbe defendant was not seized at tbe time of tbe conveyance; and judgment was entered accordingly, from which defendant appeals.

*Bentley & Seaman,*for appellants,

claim that tbe evidence showed that tbe deed was executed to *William Hilmert*as sole grantee, and delivered to him as bis deed, and that tbe remedy upon tbe covenants was defeated by tbe material alterations afterward made, citing 2 Parsons, Con., 723-4 and note; 3 Washburn Real Property, 223, and cases cited; Smith’s Lead*107ing Oases (5 Am. ed,), 960 ; that the deed was thereby rendered, void for all purposes of evidence, citing 4 Kent Com. 526, and note ; 3 Washburn Real Prop,, 220, etc.; 1 Greenleaf Ev., § 564, etc.; *Morris v. Vanderen,*1 Rail., 67; *Lewis v. Payne,*8 Cow., 71; *Withers v. Atkinson,*1 Watts., 237 ; *Parker v. Kane,*4 Wis., 1. *In re Wilson,*8 Wis., 171; that the covenant was not binding on the grantor, being only for “ his heirs, executors and administrators,” and no covenant could be implied, citing R. S., chap. 86, sec. 5: that *William Hilmert*was joined with *Mary*as plaintiff only as husband, the claim for recovery being made by her; and that the verdict was contrary to instructions, and not supported by evidence, citing *Hayward v.*Ormsbee, 7 Wis., Ill; *Van Vallceriburg v, Hoskins,*id., 496 ; *Whalón v. Blackburn,*14 Wis., 432 ; *Ford v. Ford,*3 id., 399; 1 Ora-, & Wat. on New Trials, 326.

*Omrad Krez,*for respondent,

as to burden of proof, cited *Mecklemv. Blake,*16 Wis., 102; *Beckman v.*Henn., 17 id., 412; as to the effect of alterations in a deed, 3 Phillips on Ev., 461 and notes; *Jackson v. Malin,*15 Johns., 293 ; and as to the delivery of the deed, *Souverbye v. Arden,*1 Johns,, Oh. 240.

Cole, J.

It is very apparent that the jury must have found under the directions of the court that the deed was executed, acknowledged and delivered in the name of Mary Hilmert. The court very clearly and pointedly instructed the jury that the action must fail, if they found from the evidence either that the deed when delivered had both William and Mary Hilmert named as grantees therein; or if it was executed and delivered as a deed to William, and his name was afterwards struck out and the naine of Mary inserted in its place as grantee; because the delivery of the deed to William would have the effect to vest the title absolutely in him, and that no act other than a deed executed by him would operate to vest the title in Mary, This is the substance of the instructions given at the request of both plaintiffs and defendant. So that the jury must have been satisfied from *108the evidence that the deed was executed and delivered in the name of Mary, and this conclusion, we think, is amply sustained by the proof in the case. An inspection of the original deed, which has been sent up with the bill of exceptions, most conclusively shows that the name originally inserted as grantee was Mary Hilmert, and that the word “Mary” was stricken out and the name “ William ” was written over it in the same handwriting, and that then “William” was struck out and “ Mary” interlined, and that a reference was made to this in-terlineation at the, bottom of the deed in the following words, viz: “It should be Mary by consent of the parties before signing.”

The evidence relied upon to show that the deed was executed and delivered as, and for a deed, to Wm. Hilmert, is the testimony of the witnesses Little and Chaplin. The former was one of the witnesses to the deed, and the justice who took the acknowledgment He was quite confident that William Hil-mert was the grantee, and that Mary’s name was not in the deed when he took the acknowledgment. The other witness to the deed-'was Chaplin, who testified with equal confidence that the name of the grantee was William Hilmert. But what destroys, in a great degree, the effect of this testimony, is the fact that the deed, upon its face, shows, beyond all question, that the name of the grantee, as first written, was Mary Hilmert, and both these witnesses are quite positive that there was no erasure or interlineation in the deed when they signed it as witnesses. They are most indubitably mistaken, either as to the name of the grantee, or about the fact of an erasure at this time, and it is more probable that they were mistaken on the first point than on the latter. For such an erasure and interlineation as these are in this deed catch the eye at the first glance, while the name of the grantee is less likely to attract notice. The witnesses would have observed that the name “ Mary ” was erased, and the name “William” was inserted above it, between the lines, had this been done before the execution of the deed.

*109It is tbe first thing about tbe deed that arrests and fixes tbe attention of one examining tbe instrument. And we should therefore infer from the testimony of these witnesses, that there was no erasure and interlineation in the deed when they saw it, and that Mary Hilmert was tbe name of the grantee when the deed was executed and aeknowleged. There is another circum-stahce that the feminine personal pronoun is used in tbe instrument where tbe grantee is referred to. So that, if it were our duty to pass upon tbe effect of testimony and determine what facts were established by it, we should say that the strong probability was that tbe name of tbe grantee, when tbe deed was executed and delivered, was Mary Hilmert. This was the result reached by tbe jury, and this conclusion is fully sustained by the evidence. There is no pretence that there was any alteration made in the deed by Mary Hilmert or with her consent after the delivery thereof. We really do not see any force in the objection that tbe grantor did not covenant for himself but only “ for bis heirs, executors and administrators.” It is plain enough upon tbe face of tbe instrument that tbe defendant bound himself by the covenants.

These remarks dispose of tbe material points in tbe case.

*By the Court.*— Tbe judgment of tbe circuit court is affirmed.