Gould

Upon the sixth day of March, 1888, appellant, Wise, entered into an agreement with Charles O. and Asa Adams to convey to them certain land. Upon March 12, 1889, Charles Adams, one of the parties to the agreement, transferred his interest in the property to his co-purchaser, Asa Adams. On the same day, Asa Adams, having procured the deed from his co-purchaser, applied to appellant, Wise, for a deed of the premises contracted for, representing to him that he would pay one thousand dollars cash, which, together with five hundred dollars which had been paid at the date of the execution of the contract, would amount to fifteen hundred dollars paid on the purchase price, and that he would execute the mortgage provided for in the agreement aforesaid for the balance. Appellant at the time was weak and infirm from old age and sickness, and was conveyed by Asa Adams in a vehicle to the office of a notary, and there the deed and the notes and mortgage set forth in the cross-complaint herein were executed in the manner hereinafter stated. Before the payment of the one thousand dollars, Adams, without the consent of Wise, took the deed from the notary’s office, presented it to R. W.…

Having dissented from the order denying a rehearing of this cause, I desire to state briefly the grounds of my dissent.

The decision of the court is based upon the single proposition that on the facts testified to by the appellant he was not estopped to deny the delivery of his deed as against an innocent purchaser for value from his grantee. There are other questions presented by the record which have been fully argued by counsel; but since they have been left unnoticed by the court, they will not be considered here, it being my intention merely to state my reasons for dissenting from the proposition decided, as to which alone the case becomes a precedent.

If there were no doubt of the soundness of the conclusion that on the facts as stated by the appellant there was no estoppel, it would still, in my opinion, be insufficient to warrant a reversal of the judgment and order of the superior court; for the judge who tried the cause was not bound to accept the appellant’s version of the facts upon his own uncorroborated testimony. The possession, by his grantee, of his deed, fully and formally executed, acknowledged, and certified, and containing a recital that the purchase price…