SLOCUM V. BRACY.

[55 MINNESOTA, 249.]

CONTRACTS-VENDOR AND PURCHASER-DEED-MERGER,-If a deed is ao cepted as performance of a contract to convey real estate, the contract is merged in the deed which alone determines the rights of the parties, though it varies from that stipulated for in the contract, as where the deed of a third party is accepted in lieu of the vendor's deed. If the deed accepted contains no covenants the grantee cannot, in the absence of fraud or mistake of fact, recover back the consideration paid, even on failure of title.

VENDOR AND PURCHASER-CONTRACT TO CONVEY-DEED-EVIDENCE-If, in performance of a contract to convey real estate, the deed of a third party is given instead of the vendor's deed, the burden is upon the vendor to prove that it was accepted, not merely as a conveyance, but in performance of his contract. But the vendee may prove by parol that his acceptance of the deed as performance was only conditional, as such evidence would not contradict the terms of the deed, or tend to prove that it was not to be operative as a conveyance according to its terins. The burden of proving any condition attached to the aoceptance is upon the vendee.

THE action was, on defendants' motion, dismissed in the lower court, after a trial of the issues, on the ground that no damages had been proved. Plaintiff appealed from an order denying his motion for a new trial.

Fletcher, Rockwood & Dawson, for the appellants.

Edgerton & Maclay, for the respondent.

252 MITCHELL, J. This was an action to recover the consideration paid for land which defendants contracted to convey to plaintiffs by "a good and sufficient deed, free of all encumbrances," but which it is alleged they had failed to convey, and were unable to convey, by reason of want of title.

Stripped of immaterial matter, the answer was that defendants had performed by procuring a quitclaim deed of the land to plaintiffs from a third party whose title "rested upon final receipts of the receiver of the United States landoffice," which deed plaintiffs had accepted as full performance of defendants' contract.

The reply admitted the execution of this quitclaim deed, but denied that plaintiffs had accepted it as performance of the contract, and alleged that, at the time of the execution of the deed, it was agreed between plaintiffs and defendants that "it should not be deemed performance of the contract,

except in the event that a patent for the land should be issued by the government"; that the entry of the land was canceled by the government, and hence no patent issued, by reason whereof there was an entire failure of title.

No rule of law is better settled than that, where a deed has been executed and accepted as performance of an executory contract to convey real estate, the contract is functus officio, and the rights of the parties rest thereafter solely on the deed. This is so although the deed thus accepted varies from that stipulated for in the contract, as where the vendee accepts the deed of a third party in lieu of the deed of his vendor; and as, in the sales of land, the law remits 253 the party to his covenants in his deed, if there be no ingredient of fraud or mistake in the case, and the party has not taken the precaution to secure himself by covenants, he has no remedy for his money, even on failure of title. What is said in Donlon v. Evans, 40 Minn. 501, seems to conflict with this doctrine, but this question was not involved in that case. The complaint alleged false and fraudulent representations as to the title of the grantor in the deed. The court found this allegation to be true, and the evidence abundantly sustained the finding. This fraud was the real gist of the cause of action in that case.

The deed of a third party not being what the executory contract called for, the burden was on the defendants, as the trial court correctly held, to prove that plaintiffs accepted the deed in performance of the contract. But it was not necessary to prove that plaintiffs expressly agreed, in s0 many words, to accept it as performance; the fact might be proved by the acts of the parties, and other circumstantial, but equally persuasive, evidence.

The evidence is conclusive that this quitclaim deed was executed and unconditionally delivered to plaintiffs with reference to this executory contract; also that plaintiffs ac cepted it as a conveyance with reference to that contract and in lieu of a deed from the defendants, and then proceeded to settle and close up the transaction on that basis. This certainly made out at least a prima facie case for the defendants that the deed was accepted in performance of the contract. If there were any conditions attached to this acceptance the burden was then cast on plaintiffs to prove it.

There would be a very clear distinction (apparently not fully kept in mind by counsel) between plaintiffs merely ac

cepting the instrument as a conveyance and their accepting it as performance of defendants' contract.

We therefore think that it would have been competent for plaintiffs to have proved by parol the allegation of their reply that their acceptance of the deed as performance of defendants' contract was only conditional. Such evidence would not contradict the terms of the deed, or tend to prove that it was not to be operative as a conveyance according to its terms. But the defect in plaintiffs' case is that they produced no sufficient evidence to rebut defendants' evidence that the deed was accepted as performance of the executory 254 contract, or to show that there was any such condition attached to its acceptance, or such as is alleged in the reply.

The only evidence offered having the least tendency in that direction was that, after the entry of the land was canceled, the defendants made some attempts to get a rehearing before the secretary of the interior, in order to get the entry reinstated. While this fact might be of some weight as corroborative of some other and better evidence, yet, standing alone, it amounted to nothing.

Therefore, in our opinion, the evidence as it stood conclusively showed that plaintiffs accepted this quitclaim of a third party as performance of defendants' executory contract to convey, and hence, there being no element of fraud or mistake in the transaction, they were not entitled, under the rules of law already referred to, to recover the consideration paid because of failure of title. On this ground the action was properly dismissed, and whether the trial court assigned the right reason is not material.

Order affirmed.

MERGER OF CONTRACT OF SALE IN DEED.-The general rule is that all articles of agreement for the sale of land are merged in and extinguished by a subsequent deed thereof between the parties. The agreement becomes a nullity, and the rights of the parties are controlled by the deed: See monographic note to Clifton v. Jackson Iron Co., 16 Am. St. Rep. 622-624, dis. cussing the subject; Kerr v. Calvit, Walker, 115; 12 Am. Dec. 537; Hunt v. Amidon, 4 Hill, 345; 40 Am. Dec. 283; Timms v. Shannon, 19 Md. 296; 81 Am. Dec. 632. Contra, Speed v. Hann, 1 T. B. Mon. 16; 15 Am. Dec. 78. But a parol contract by a vendor to refund the purchase money on a failure to give title, and to repay all costs and expenses incurred, is not merged in a deed subs quently executed, with a covenant of special warranty, but no covenant of title. Such contract survives the deed, and confers an independent cause of action, enforceable upon a failure of the title: Close v. Zell, 141 Pa. St. 390; 23 Am. St. Rep. 296.

GILBERT V. EMERSON.

[55 MINNESOTA, 254.]

RIPARIAN RIGHTS ON SHORE AND WATER LOTS.-The right of the riparian proprietor upon navigable waters to reclaim, improve, and occupy submerged lands out to the line of navigability may be separated from the riparian right in the shore land, and be transferred to, and enjoyed by, persons having no interest in the original shore. RIPARIAN RIGHTS-INTENTION OF GRANTOR.-The rights granted by one who plats and sells his land fronting on navigable water, where there is submerged land lying between the shore and point of navigability, depend upon the question of the grantor's intention in making the conveyance. RIPARIAN RIGHTS-RESERVATION OF PROPRIETARY RIGHTS IN CONVEYANCE NOT PRESUMED.-If a party conveys a parcel of land bounded by water it will never be presumed that he reserves to himself proprietary rights in front of the land conveyed. The intention to do so must clearly appear from the conveyance.

THE PLATTING AND SALE OF WATER LOTS IN SHALLOWS lying between the shore and point of navigability in navigable waters manifestly contem. plates reclaiming them, and filling them in, or otherwise improving them for use.

RIPARIAN RIGHTS AND TITLE TO LAND BOUNDED BY NAVIGABLE WATERsCONVEYANCES-WATER LOTS.-If the owner of land fronting on a bay plats it into blocks and streets, extending the plat several blocks beyond the shore line, out into the shallow water, but not out to the line of navigability, and then conveys, according to the plat, the original shore block to one person and all the water blocks in front of it to another person, the plat shows, on its face, an intention that the outermost platted blocks shall be deemed the shore blocks, with all the riparian rights in the water, and land under the water, in front of them usually incident to a riparian estate. Hence, after the owner's conveyance of these water blocks he has no proprietary interest in the unplatted space in front of them. Neither does the grantee of the original shore block acquire any appurtenant riparian rights in the unplatted space between the outermost platted blocks and the line of navigability. His rights are limited to the lines of the original shore block as indicated on the plat. APPEAL by the plaintiff from a judgment decreeing that he was not, and that the defendant Howe was, the owner of the unplatted submerged land in controversy. Appeal, also, by defendants Emerson and Eldridge from the same judgment decreeing that they had no title, estate, or interest in the same submerged land. Both appeals were argued together. Billson & Congdon, for the appellant Gilbert.

Edward Fuller, for the appellants Emerson and Eldridge. William B. Phelps, for the respondent, Howe.

259 MITCHELL, J. This is another of the familiar series of controversies over titles and riparian rights, growing out of

the fact that Orrin W. Rice, the original owner of a peninsu lar fronting on the waters of the bay of Duluth, known as "Rice's Point," in platting his land into lots, blocks, and streets, extended the plat for a distance of several blocks beyond the shore line out into the shallow water: Gilbert v. Eldridge, 47 Minn. 210; Bradshaw v. Duluth Imp. Mill Co., 52 Minn. 59.

Rice did not, however, plat out to the line of navigability, and hence an unplatted space was left between the outermost blocks and the navigable waters. It is this unplatted space which is the subject of the present controversy.

After platting the land Rice conveyed the original shore block (85) to the grantors of defendants Emerson and Eldridge, and conveyed to the grantors of plaintiff all the water blocks in front of block 85, including those fronting on the unplatted space referred to. Years afterward Rice's heirs conveyed the unplatted space to the defendant Howe.

Plaintiff claims the right to occupy this unplatted space by virtue of his ownership of the outermost blocks fronting on it, his contention being that the plat clearly shows on its face that it was intended that these blocks should permanently enjoy access to the water; in short, that they should be the "shore blocks," and that, 260 as such, the riparian rights usually appurtenant to the shore land should attach to them.

Defendants Emerson and Eldridge claim the right to the unplatted space as appurtenant to their ownership of the original shore block, their theory being that the riparian rights originally incident to the shore land were curtailed by the plat only as to the land covered by the platted blocks, thus leaving still incident to the original shore block the unplatted space out to the point of navigability.

Defendant Howe bases his claim upon the deed from Rice's heirs, upon the theory that, where a riparian owner extends. the plat of his land out into the adjacent shallow water, he still retains, after selling all his platted water blocks, the right to improve, as against his grantees, all that lies beyond the boundaries of the plat out to the line of navigability.

It is the settled doctrine of this court that the right of the riparian proprietor upon navigable waters to reclaim, improve, and occupy submerged lands out to the line of navigability may be separated from the shore line, and transferred to and enjoyed by persons having no interest in the original