145 Iowa 591 | Iowa | 1910
The plaintiff as a witness in his own behalf swears that he himself wrote the deed for the lot to Pope, and that the name of the latter was written therein as grantee, and the name Albert Schmitz has at some time since been written therein without his authority. The instrument itself was put in evidence, and has been certified to this court. It is written upon a blank form in common use, the material part of which is as follows (the blanks being numbered by us for convenience of reference) :
*594 “Know all men by these presents that we (1) ...... of (2) ......County, state of (3) ... ..., in consideration of the sum of (4) ......dollars in hand paid by (5) ...... of (6) ......, do hereby sell and convey unto the said (7) ...... the following described premises: (8) ...... And we hereby covenant with the said (9) ......that we hold said premises by a good and perfect title,” etc.
The name “Albert Schmitz” is clearly written in the space No. 7, prepared for the name of the grantee. It shows not the slightest indication that any other name has ever been erased, obliterated, or removed therefrom, or that the name of “Schmitz” has been written over or superimposed upon any other name, and it is impossible to examine it and avoid the conclusion that the witness is mistaken when he says he filled in this blank with the name “J. B. Pope.” It is one of those cases where the physical fact is so patent and indisputable that testimony to the contrary can not prevail. It does appear, however, that at some time the name “J. B. Pope” has been written in the blank No. 5, designating the person from whom receipt of the consideration is acknowledged, also in blank No. 9, for the name of the covenantee, and that this name has been erased from both places here mentioned. The name “Albert Schmitz” was written in blank No. 5 over the erasure. The name “Story” has also been written in blank No. 6, and through it. a pen has been drawn, and “Tama” substituted therefor. Odett testifies that these changes except the substitution of “Tama” for “Story” had been made in the deed before he receiveck-it, and says they were explained to him by Pope’s statement that he took the deed' in blank, and that at one time thereafter started to fill it out in his own name, but changed his mind and - concluded to leave it in blank. This theory has some corroboration in the fact that a comparison of writings gives indication that the name of “J. B. Pope” as
We do not discuss the merits of plaintiff’s claim that he was defrauded by Pope, the details of which transaction he was permitted to prove on the trial below. As there was no claim and no evidence that Schmitz was a party to the fraud or had knowledge of it, we think the matter is both irrelevant and immaterial.
It follows that the plaintiff has failed to establish a right to relief against the defendant, and his bill should be dismissed, and the title quieted in defendant. — Reversed.