The Cheyenne daily leader. [volume] (Cheyenne, Wyo.) 1870-1884, 1880-01-29

and see to its execution. Street WIS a
piarNciug lawyer at CHEYENNE, and t!e
evidence OF prOtrss!uIlal cNi'I.s shows
THAT lie WAS a careful! and pI,cI5e
drauglltsman of law papers. He must
have derived from NJ. V. Boughton his
knowledge of what the deed was to
contain, the name of the grantee in
cluded; in asking for the information,
his habit of precision would govern
him. Boughton then furnished to him
the name of the grantee, and therefore
as such, the name of "Mary E. Bough-
ton," being at the time as familiar
with the name of the plaintiff, as he
was with that of his wife, and knowing
that the only distinction between their
names was the plaintiffs initial, &C."
The deed haying been prepared, he
signed and acknowledged it. The deed
has been put in evidence, and speaks
for itself, and was written by Street; it
does not contain the name "Mary
B~oughton,'' it contains the name
''Mary Z. Boughton," three times, and
just where it should express the gran
tees name, once in the granting
part, next in the habendum and finally
in the covenant.
The deed was duly filed for record
two days after its date, was not so filed
by the plaintiff, and must have been so
filed by NJ. ". B~oughton or his convey
ANGER and has on it the usual filing GER
tilicate; endorsed upon it as its title, are
the words:
Martin V. Boughton
to
Mary E. Boughton,
and the endorsement is in a large,
bold, clear hand, such that it would be
impossible for any one, handling the
document, not to see at a glance the
entire title.
The plaintiff visited Cheyenne in
June 1871, called upon N. V. Bough-
ton, for the deed, and he then handed,
and thus delivered it to her; at the
same time suggesting that she had bet
ter leave it with him to keep for her, for
better safety; yielding to the force of
hdbitual confidence, she handed it back;
he receiving it as heI custodian, and
subject to her call. 1t was precisely
such a deed, as he was bound to exc
cute to the plaintiff; he must have
known that it raj to her, and not to
his wife as grantee; under that obliga-
tion and with that knowledge he deliv-
ers it to the plaintiff as her grantee, and
receives back as her agent, and in that
capacity retains it until the later part
of 1877. AT Bryan the plaintiffs con-
fdence in NJ. V. Boughton was shaken
by his obtaining the $4,000; it was res
tored by his agreeing To deed the prem
ises, and soon after, and promptly
upon her arrival at Cheyenne delivering
the deed according to the engagement.
He coupled with this delivery n delivery
of possession, and she held possession
under the deed until the custer, and ac-
cording to his own testimony he did
not intimate to her that she was not,
and that his wife was the grantee, until
on or Immediately before December 10,
1875, nearly five years after the delivery
of the deed. Upon her direct examina-
ton, as n witness for herself, the plain
tiff testified that she was at DeadwoOd
in the latter part of 1877, sent to NJ. V,
Boughton, who was residing there, for
the deed, and he Immediately sent it to
her. On cross examination she was
asked how she knew he sent it back,
and answered she supposed lie did so,
because she sent to him for it, and il
came. To meet this evidence rs to the re.
turn of the deed the defendant Intro.
duced w. w. Corlett, who testified that
she told him that, whenat Deadwood she
sent to NJ. V. Boughton for the deed and
it was returned to her by a messenger,
who represented that Mrs. Boughton
sent it-that is, as the witness signi-
fled, who SO represented ms he handed
the deed to the plaintiff; if this evil
dence of the last mentioned witness
was introduced to impeach the plain.
tiff, it fails of that effect, because it
does not necessarily conflict with her
account of the manner in which she
got the deed back; while it does not
follow rs q matter of course, that M.
V. Boughton participated in the return
of the deed, his wife sending It, is con
sistant with the idea that she did it at
his request; but further, whoever sent
it, the deed came back to its owner,
who had a right to its possession on
call, and to take it whenever and
wherever she could find il; and, again, ]
accept this testimony of the witness,
Corlett, as true, and believe that the
| plaintiff explained to him that q mes.
senger brought the deed to her, saying
that Mrs. Broughton sent it; proving
the statement, the defendant claims il
was true, il true, the representation OF
the messenger, because accompanying
his handing of the instrument to the
| plaintiff, was u part of the res gestR,
and explains his act, and, as an expla,
nation, shows that the deed came back
through NJ. V. Boughton's wife-a
fact, which eonclusively repels the
idea hat she had any interest in the
deed for if she had, she must, accord
ing to NJ. v. Boughton, have known
it) and which fact the defendant has
proved. l am forced by these consider.
ations to conclude hat the plaintiff
was the intended, and is the real gran
tee in the deed; and l must abide in the
conclusion unless it is controlled by
two features of the defense, which
next proceed to notice.
The defence has introduced in evil
dence, an instrument, which is dated
December 10, 1875, which purports to
have the signature OF the plaintiff, and
declares that she never purchased the
premises, that the deed was not deliv.
cred to her, and that she had not and
never had any interest in either. She
admits the signature to be hers,
though there is some discrepancy as to
the place where, and the persons who
were present, when she signed. l read;-
ly find that it was done ut her residence
in Cheyenne and that the only parties
present were NJ. V. Boughton, l.. C.
Stevens, Celia Bryant and the plaintiff.
Whether she signed, understanding the