73 Iowa 186 | Iowa | 1887
We have set out with some explicitness the testimony of James Nelson, because he is the party claiming under the deed, and it must be determined from the facts as above detailed when the deed could be considered as delivered. It does not appear that any communication passed between L. H. Nelson and his father relative to the land after the conversation in Yermont in July, until the deed had been executed and recorded and sent by mail to Yermont, in November, where it was received several days after the attachment. The filing of the deed for record could not be considered as a delivery, unless it was filed in pmrsuance of a previous agreement. (Day v. Griffith, 15 Iowa, 104; Cobb v. Chase, 54 Id., 253.) The defendant James Nelson relies upon the conversation which occurred in Yermont, in July, as constituting such agreement; but it seems to us very clear that no agreement for the purchase was consummated at that time. The most that can be said is that L. H. Nelson agreed to give his father the preference as a purchaser; that is, the right to purchase in preference to any one else if he shozild see fit; or, taking what was said in a more literal sense, the right to
The motion was made before the decree was read and approved; and we think that there was no error in correcting it to make it conform to the pleadings. (Thomas v. Hoffman., 62 Iowa, 125; Town of Storm Lake v. Iowa Falls & S. C. R’y Co., Id., 218; Bosch v. Kassing, 61 Id., 312.)
Affirmed.