72 F. 864 | U.S. Circuit Court for the Southern District of Iowa | 1896
The history of this case extends over many years. The real estate to which, the controversy relates is the N. W. i of section 3, in township 96 N., of range 8 W., in Winneshiek county, Iowa. Plaintiff claims title thereto under deed dated November 3, 1871, from the heirs of John Mosher. The bill herein alleges that Mosher became the owner thereof by deed in fee simple from one Andrew Sharp, said deed having been executed and delivered to said Mosher about July 15, 1852, and that said deed has been lost or destroyed, and was never recorded; that said Sharp has since died, and his heirs are made parties de-
It would serve no useful purpose to minutely review the testimony herein. The widow of said John Mosher (since remarried, whose present name -is Mazy Hancock), in substance, states that Sharp and her late husband exchanged real properties, Mosher and his wife conveying to Sharp real estate in Princeton, Wis. She was not present at the execution of the deed from Sharp and wife to Mosher, She testifies to the negotiations preliminary to the transfer of property, to the circumstances attending the execution, at her residence, of deed from herself and husband to Sharp, in 1852, and that thereupon Sharp and her said husband and the notary left, Sharp saying that they would now go and have the notary take the acknowledgment of himself (Sharp) and wife to the deed to Mosher; that presently her husband returned, bringing with him a deed from Sharp and wife to said Mosher; that she read the deed, and remembers that it conveyed 160 acres of land in Winneshiek county, Iowa, to her said husband, and was signed by Mosher and his wife, Esther; that it was witnessed by two witnesses, whose names she cannot recall; that it was acknowledged before a,n officer, who signed his name and office thereto, but she is not able to state the description of the land as it ■was contained in the deed; that her said husband had gone to Iowa to examine the land before the trade was closed; that she and her said husband intended to move on the land, and occupy it as their homestead; that her husband was a blacksmith by trade, and they agreed between themselves that he should work at his trade another year, so as to get money with which to purchase farming tools, etc.; that, when she had read the deed over, she placed it among their other valuable papers in their residence; that, after she had put the deed away, she had a number of con
Thus far the testimony fails to connect this deed from Sharp and wife to Mosher with the real estate in controversy. In 1856, Mrs. Hancock (formerly Mosher) gave the deed, from Sharp and wife to Mosher, to one Collar, for the purpose of having him write to Iowa and ascertain what taxes, etc., were against the land, and its condition. Collar’s testimony corroborates the general testimony of Mrs. Hancock as to the contents of the deed, although not giving said contents so fully. He states that, some time after he received the deed from her, he gave the deed to J esse B. Shaw, who was going to Iowa, to have, him put it on record there. Shaw testifies that Collar gave him the deed about the year 1857, for the purpose of having it recorded. He says: “About the year 1857, in that year, I believe, I had placed in my hands by one Daniel Collar, of Racine county, Wis., a deed of conveyance, — a warranty deed, I believe, — given by one Andrew Sharp to one John Mosher. It conveyed the northwest fr. quarter Sec. three, town, ninety-six, range eight, in Winneshiek county. It was placed in my hands, to be recorded in Decorah, la.” Again he says: “I had the deed in my hands for about two weeks. On the 22d day of May, 1857, as I verily believe, I placed said deed in the hands of one Wm. Tabor of Racine county, Wis., since which time I have not seen said deed. I looked over the deed, — the description, the grantor and grantee, — and minuted the description of the land in my memorandum book.” He produces this book, with the entry therein to which he refers, which is: “Left home May 22nd, 1857. Cash, $17. H. W. f. S. 3, T. 96, R. 8.” He also states that the reason why he gave the deed to Tabor (with whom the Mosher children were at that time living), and did not take it to Iowa, was because they would not give him the money to pay the record fee of the deed. The testimony of Mrs. Hancock, Collar, Tabor, and Shaw shows that they have made diligent, but unsuccessful, search for the deed, and that they do not know where it is. The testimony is not clear and positive as "to who last had possession of the deed; but it shows that, when the deed was last known to be in existence, it was in the possession of one of these parties. That there was a deed executed by Sharp and wife to Mosher, and delivered to Mo-sher, is proven. Defendants object there is no proof of the actual execution of the deed. The proof shows that Sharp and Mosher are both dead, and that diligent, but unsuccessful, search has been made for the whereabouts of the witnesses to the deed, and of the officer who took the acknowledgment of the Mosher-Sharp deed, and is supposed to have taken that of the Sharp-Mosher deed, and who left the Mosher residence with the expressed intention of taking the Sharp acknowledgment. The testimony of Mrs. Hancock
I find, therefore, that about July 15, 1852, said Andrew Sharp and wife executed and delivered to said John Mosher a deed conveying to said Mosher the N. W. fractional of section 8, in township 96 N., of range 8 W., in Winneshiek county, Iowa; and that plaintiff is entitled herein to decree accordingly, and for costs. Counsel for plaintiff will prepare decree accordingly, and submit the same to counsel for defendants. To all of which defendants except, and are given 60 days from entry of judgment within which to have signed and filed hill of exceptions.