Jan., 1921] Liljedahl v. Glassgow.

827

lost, and for tbe purpose of aiding the jury in arriving at the
value of the ring in controversy.
In the ease of Cuebas v. Klein, 61 N. Y. Supp. 923, the
court held that, in establishing the value of a lost watch, a watch
of similar design was admissible in evidence, to show value by
comparison.
We have examined all of the assignments of error as to rul-
ings on admission of testimony, and to instructions of the court,
and we find no error. The judgment of the court below is—
Affirmed.

Evans, C. J., Stevens and Faville, JJ., concur.

G. J. Liljedahl, Appellant, v. Frank Glassgow et al., Appellees.

MORTGAGES: Transfer of Property —Assumption of Debt by Un-

named Grantee. The purchaser of land, for a valuable considera-
tion, who, in this state, accepts a deed which is blank as to grantee,
and which provides that the grantee assumes and agrees to pay
in this state the mortgage incumbrance on the land, becomes per-
sonally bound to pay said incumbrance, even though he passes said
blank and unrecorded deed to a subsequent purchaser, and even
though the land is situated in a foreign state which by statute
provides that a deed blank as to grantee is void. The agreement
to pay said debt is a personal obligation and is governed solely by the
laws of this state.

Appeal from Page District Court. —Thomas Arthur, Judge.

January 19, 1921.

Plaintepe appeals from a judgment upon a verdict of the

jury returned by direction of the court.—Reversed.

Ferguson, Barnes & Ferguson, for appellant.

Wilson '<&Keenan and William M. Jackson, for appellee.

. Stevens, J. —On May 20, 1915, one L. D. Bailey, who was

the owner of a tract of land located in the state of Colorado,
828 Liljedai-il v. Glassgow. [190 Iowa

executed promissory notes in the aggregate amount of $6,000,

with interest coupons attached, and, to secure payment thereof,
at the same time executed a mortgage upon the Colorado land.
The notes are dated and made payable to H. I. Foskett of Shen-
andoah, at the Shenandoah National Bank in said city, and were
shortly thereafter assigned to plaintiff, who loaned the money
to Bailey thereon. Two days later, the said Bailey executed a
deed before a notary public in Shenandoah, describing the Colo-
rado land, but without the insertion of the name of anyone as
grantee. The consideration recited in said deed is $1.00 and
other valuable consideration. The deed contained the following
clause:
‘‘This deed is made subject to one loan of $6,000 and one of
$600 which the grantee assumes and agrees to pay as part of the
purchase price above mentioned.”
Plaintiff alleged in his petition that, during the summer of
1917, the said Bailey conveyed the Colorado land to Frank Glass-
gow by delivering the deed in question to him, and that the
said Glassgow in turn conveyed the same to A. M. Hiatt, and
the said Hiatt later conveyed to the defendant Joe Hilger, all
of said conveyances being accomplishe'd"by the delivery and
acceptance of said deed without the insertion of the name of the
purchaser as grantee; that each of said purchasers became and
were, in fact, grantees under said deed, with full right and au-
thority to insert therein his own name as such; that each con-
veyance was for a full consideration; and that, by reason thereof,
the said defendants became liable for the payment of the mort-
gage indebtedness to the plaintiff; that default was made in the
payment of the interest coupons; and that, by the terms of said
instrument, the whole indebtedness thereby became due: and
plaintiff demands judgment for $6,000, interest, and costs. After
suit was commenced, Frank Glassgow died, and the defendant
Nellie Glassgow, administratrix of his estate, was substituted.
Each defendant filed a separate answer, containing a general de-
nial, followed by the admission that the said Bailey owned the
land and executed the notes and mortgages described; that the
deed in question was delivered by him to Glassgow; and that he
in turn delivered it to Hiatt; and that, after passing through
the hands of vai’ious parties it was delivered to one C. E. Brown,
Jan., 1921] IlILJEDAHL V. GkiASSGOW. 829

who inserted his name therein as grantee, and caused the same to
be recorded. Bach of the defendants specifically denied that he as-
sumed or agreed to pay the mortgage indebtedness, and averred
that the deed was, in fact, void, and conveyed no interest in said
real estate under the laws of Colorado, except to C. B. Brown,
whose name was finally inserted in the blank space as grantee.
At the conclusion of all the evidence, the court, upon motion of
counsel for defendant, directed the jury to return a verdict in
their behalf, and judgment was accordingly entered against
plaintiff for costs, and he appeals.
The law is settled in this state that the equitable title passes^
by the delivery of a deed blank as to the name of the grantee, \
to a purchaser for a valid consideration (Bossingham v. Syck,
118 Iowa 192, Logan v. Miller, 106 Iowa 511); and that, by ac-
cepting a deed containing a clause by which the grantee assumes^
and agrees to pay incumbrances, such purchaser becomes liable 1
for the payment thereof, the same as he would if his name were/
written in the instrument. Beeson v. Green, 103 Iowa 406; Bos-
singham v. Syck, supra; Marble Sav. Bank v. Mesarvey, 101
Iowa 285; Bennett Sav. Bank v. Smith, 171 Iowa 495; Santee v.
Keefe, 127 Iowa 128; Gray v. Bricker, 182 Iowa 816; Logan v.
Miller, 106 Iowa 511. Under the law of Colorado, however, a
deed blank as to grantee is a nullity, and passes no interest what-A
ever by delivery to a purchaser, until his name is written therein.'
He has implied authority to insert his name therein, and by doing
so he acquires title. McGrew v. Lamb, 60 Colo. 462 (154 Pac.
91); Halliwill v. Weible, 64 Colo. 295 (171 Pac. 372); Herr v.
Denver M. & M. Co., 13 Colo. 406 (6 L. R. A. 641). Counsel for
appellee base their principal contention upon the fact that the
defendants, who received and passed the deed without designa-
tion therein of a grantee, never became such under the law of
Colorado, or acquired any interest in the land; and that the
clause above interposed no obligation upon them to pay said
incumbrance. On the other hand, counsel for appellant take the
position that, while the question as to the sufficiency of the deed
to convey title must be determined by the law of Colorado, the
assumption of the incumbrance and the agreement to pay the
same are personal covenants, executed and to be performed in
the state of Iowa, and that, therefore, the legal effect thereof
830 Liljedahl v. Glassgow. [190 Iowa

must be determined by tbe law of this state, and not by the

law of Colorado. It is a rule of universal application that in-
struments of conveyance, in so far as they relate primarily or
directly to the title, are to be construed according to the lex rei
sitae. Wharton on Conflict of Laws (8th Ed.) 591; Finnes v.
Selover, Bates & Co., 102 Minn. 334 (113 N. W. 883); Clement
v. Willett, 105 Minn. 267 (117 N. W. 491). But personal coven-
ants or agreements in instruments of conveyance will be given
effect according to the law of the place where the same are
executed and to be performed. Finnes v. Selover, Bates & Co.,
supra; Clement v. Willett, supra; Poison v. Stewart, 167 Mass.
211 (45 N. E. 737); Cochran v. Ward, 5 Ind. App. 89 (29 N.
E. 795); Wharton on Conflict of Laws (8th Ed.) 591.
It is not claimed that the alleged conveyance of said land by
Bailey to Glassgow, and by Glassgow to Hiatt, or by Hiatt to
Hilger, was without consideration, nor is it denied that the
parties intended thereby to transfer title to the land, or that any
of the alleged purchasers had the legal right, under the law of
Colorado, to insert his name as grantee in the deed, and cause the
same to be recorded, and thereby to become vested with title. It
is elementary that contracts made and to be performed in a par-
ticular state are made with reference to the law of that state,
which the parties must be presumed to have had in mind at the
time of making the contract. The plaintiff and the defendants
Glassgow and Hiatt were residents of Iowa, but the defendants
Bailey and Hilger were nonresidents of the state. The notes
executed by Bailey to Foskett, and by him assigned to plaintiff,
were by their terms payable at the Shenandoah National Bank,
Shenandoah, Iowa; and, while the record does not disclose
whether the deed was delivered to Glassgow in Shenandoah or
not, it does appear affirmatively therefrom that he had it in
his possession, and in his office in Shenandoah, some time before
the consummation of his deal with Glassgow, so that delivery
was probably accomplished in this state. Some evidence was also
introduced from which the jury might infer that the defendant
Glassgow, and also the defendant Hilger, understood the legal
effect of accepting a deed containing the clause in question. In
fact, Hilger testified that, after discovering it in the deed, he
immediately returned the instrument to the person from whom
Jan., 1921] Liljedahl v. Glassgow. 831

he received it, and rescinded the contract. The jury would

have been warranted, under the evidence disclosed by the record,
in finding that Glassgow exchanged the Colorado land for a
farm in Clarke County by delivering the deed in question to
the owner thereof, or his agent. The parties may be presumed to
have contracted with reference to the law of ■Iowa, where the
contract was executed and to be performed, and it may be pre-
sumed that they intended to be bound in accordance therewith.
It is clear that the clause in question relates only to the con-'*
sideration, and not primarily or directly to the title. It could
as well have been the subject of an independent contract, and
we think it must be construed and given effect according to the
law of this state. It cannot be presumed that the parties in-
tended that same should be construed and applied according to
the law of Colorado. The amount of the incumbrance, according
to the recital in the deed, was deducted from the purchase price.
The Supreme Court of Minnesota, in Clement v. Willett, 105
Minn. 267 (117 N. W. 491), held that a provision in a deed con-
veying land in the state of Iowa, but executed and delivered in
the state of Minnesota, between parties residing therein, whereby
grantee agreed and assumed to pay an existing mortgage, was a
personal contract, governed by the laws of Minnesota. It could
hardly be supposed that the transactions involved in the case
at bar were conducted on either side upon the theory and with
the understanding that the deed was passed from one party
to the other for a cash consideration, or in exchange for other
land. New Haven Tr. Co. v. Camp, 81 Conn. 539 (71 Atl. 788) ;
Pritchard v. Norton, 106 U. S. 124 (27 L. Ed. 104).
Presumptively at least, the parties intended the deed to take
effect as a conveyance, the same as though the land were situated
in Iowa; and, in the absence of a showing to the contrary, de-
fendants, except Hilger, were not entitled to a directed verdict.
The deed appears to have been delivered to him without knowl-
edge of the clause in question, and, immediately upon discover-
ing the same, he returned the deed to the party from whom he
received it, and there appears to have been a mutual rescission
and cancellation of the contract. As the deed, under the law of
Colorado, did not, in fact, pass title, and the contract assuming
and agreeing to pay the incumbrance was an Iowa contract, to
832 Mortensen v. Frederickson Bros. [190 Iowa

be considered and enforced according to the law of this state,

the parties could rescind the same in the manner shown. The
only question upon this point is that defendant does not spe-
cifically plead rescission, and the evidence was objected to when
offered. The point does not appear to have been raised in the
court below, and the case was tried apparently upon the theory
that the issue was before the court.
Considerable is said by counsel for appellee of the appear-
ance of the name “John Anderson,” written in the blank space
in the covenants of the deed; but the evidence does not disclose
how this name came to be inserted, nor is any transaction re-
ferred to in the evidence in which a person by the name of
Anderson participated. It was subsequently erased, and that
of C. E. Brown substituted. The appearance of this name in
the deed would seem to be without particular significance.
Counsel for appellee, it seems to us, gives too narrow a
meaning to the word “grantee.” Of course, it usually refers
to the one to whom the conveyance is made; but, if the name is
not written in the instrument, and the deed is passed in that
form from one owner to another, the term must be used in that
connection in the sense of purchaser, and we think that is the
interpretation that should be given it in this case. It was the
purchaser who was to assume and pay the incumbrance.
While we have not referred to all the matters covered by-
counsel in argument, what is said above disposes of the case, and
we refrain from extending the opinion further. It follows that
the judgment of the court below must be, and is,—Reversed.

Evans, C. J., Weaver and Faville, JJ., concur.

Arthur, J., took no part.

Charles Mortensen, Appellant, v. Frederickson Bros. et al,

Appellees.

SALES: Mutual Rescission —Nonallowable Demurrer. A petition which

1 distinctly alleges (1) a specific oral contract of rescission of a con-
tract of sale, and (2) an implied contract of rescission by reason