Bird v. Adams

56 Iowa 292 | Iowa | 1881

Rothbock, J.

í deed • date e^delmeto1: impeach. The defendants by their answer base their right to subject’the land to the payment of the judgment upon ^he allege fact that the deed was actually ex-ecuted after the judgment became a lien, but was ¿ated back to a time before the judgment was rendered. The deed was not filed for record until October, ,1878.

The plaintiff introduced in evidence a deed from James Bird, dated September 25, 1877, and acknowledged the same day, which conveyed the pi'operty to the plaintiff. It cannot be denied, in view of the evidence in the case, under the issues, that the deed, although unrecorded, would convey the title to- the plaintiff, and that he would hold the. property clear of the lien of any judgments thereafter rendered against James Bird.

The defendants, in support of the allegations of their answer, introduced the plaintiff as a witness, who testified that the deed was received by him in two or three days after its date. J ames Bird also testified that he executed the deed to the plaintiff on the day of its date, and sent it from Chicago to the plaintiff by mail. Tov rebut this evidence, the defendants rely on the testimony of a witness who stated that at the time of a fair at Cedar Rapids, in 1878, the plaintiff and James Bird had a conversation, in which James Bird said to plaintiff that it was best to have a deed, and an unrecorded deed; that plaintiff asked James Bird where he could get it, and that he replied that he had a place in Chicago, or New York, where he could get it. This witness admitted that he was not on friendly terms with the plaintiff. Other witnesses testified that James Bird was not, as they remembered, at Cedar Rapids at, or shortly before, the date, of the deed, as claimed by the plaintiff. Another witness testified that said Bird was at the fair at Cedar Rapids in 1877. Upon this evidence, and what is claimed to be some contradictory statements by the plaintiff, the defendants claim that the decree of the court below should be sustained.

It appears to us counsel underestimate the force and effect which should be given to the deed itself, and to the acknowledgment thereto. The certificate of the officer, dated on the 25th day of September, 1877, should in our judgment be held to prevail over all the oral evidence which in this case impliedly contradicts it. If the titles to real estate should be allowed to be impeached, and the date of conveyances be controlled and changed by evidence of loose and random conversations between the parties thereto, the right of property would rest on a very insecure and unsafe foundation.

It will be understood that we are determining this case upon a trial de novo on the issues joined, and upon the evidence. Whether, if the defendants had by cross bill set up the insolvency of James Bird, and that the conveyance was fraudulent as to the defendants, and prayed a cancellation of the deed, they would have been entitled to a decree we cannot determine. It would seem that as the debt for which the judgment was rendered was contracted after the conveyance of the property, there would be a question as to defendant’s right to subject the property to the satisfaction oj: the judgment. But with this, under these issues, we have no concern.

The plaintiff should have a decree making the injunction perpetual, which at his election he can have in this court, or in the court below.

Reversed.