172 Iowa 12 | Iowa | 1915
1. The facts in this case, as shown by the undisputed evidence, or satisfactorily established by the evidence, are, substantially: The plaintiff is the widow of Peter Erickson. He died October 8, 1899. For about two years before his death, he had been in poor health. A few days before his death — to be exact, September 23, 1899 — he executed and delivered a quitclaim deed to his wife, conveying the 160 acres in controversy, which was recorded October 12, 1899. The deed recites that the consideration is love and affection
The defendant claims title to an undivided one half of said land under a warranty deed executed to him by plaintiff’s husband, in which plaintiff joined, relinquishing her right of dower. This deed is dated December 13, 1892, but was not recorded for nearly seventeen years thereafter, or on August ■9, 1909. The deed was kept by the defendant in his safe with other papers. Defendant claimed that he agreed with Peter Erickson not to record the deed because, as he says:
“We thought both of us it would be necessary to renew the loan on the land and by not putting it on record we should save the expense in regard to bringing .the abstract up, so that everything would go in the same name it was previous. I was merely to hold it until these matters were settled up. ’ ’
By cross-petition, the defendant asked that his title be quieted, and he also pleaded his deed as an estoppel. Plaintiff is now nearly seventy years of age. She was born in Sweden and came to this country about thirty-two years ago. During substantially all that time, she has lived upon this land. She and her husband settled upon the land and built a small one-room house thereon, and there was a kind of a shed for the horses. Plaintiff continued to live with her husband on the farm until the time of his death, and, as stated, by reason of the physical condition and the habits of her husband, plaintiff was required to, and did, perform labor upon the farm. When
A drainage district was established across this land and notices of its establishment and the assessment were published in the Stratford paper, the notices describing the land as being in plaintiff’s name. An assessment of $524 was levied against the land, which she paid.
The land was situated about a mile and a half east of the town of Stratford. She put in and paid out for about five hundred rods of tile on said land. She paid the taxes on the land after the death of her husband, and her husband paid the taxes prior to that time. Defendant claims that he paid, on one or two occasions, a few dollars on the taxes, but we are satisfied from the record that the taxes were paid, as above stated, by plaintiff and the husband. She paid the interest on the $2,000 loan obtained by her husband on the premises and made payments of the principal until she had reduced the amount of the loan to $1,100, when she acquired a new loan for that amount, giving a mortgage on the premises, and she furnished an abstract of title showing that the title to the premises was in her. She afterwards paid the $1,100 mortgage. The banking business was done at the Stratford bank. During all the time of these transactions from the date of her deed in 1899, the record showed the title to the land to be in plaintiff, up to the time that defendant recorded his deed, in 1909. The $1,100 mortgage given by plaintiff was recorded in Hamilton county, as was the prior mortgage of
Plaintiff learned to read the Swedish language a little, but could not read English until five or six years prior to the trial. At the time the deed to defendant ivas given, the plaintiff was not at defendant’s place, and she did not see defendant; she did not remember going before the notary to acknowledge signing the paper; she was not present when the deal for the deed, to defendant was made; she had no knowledge of the transaction between -her husband and the defendant. Her signature, however, to defendant’s deed is not disputed.
Defendant lived at Stratford and had been in the hardware and implement business there for thirty years or more. He was well acquainted with plaintiff’s husband in his lifetime and they had many deals together. Defendant assisted Erickson by signing notes with him as surety. Defendant owned land near the land in controversy; he did his banking business at the same bank that plaintiff and her husband did their banking business. Peter paid defendant money on account and paid up some of the old debts on account, and notes which defendant had signed with him, and when he would pay such notes he would exhibit them to defendant and show that they had been paid; some of them were turned over to defendant. Within a month or two after her husband died, plaintiff paid defendant $100 on account of her husband’s indebtedness to defendant, and other amounts within a short time to apply on account. She claims she paid all he asked, but that defendant did not make any itemized account
*19 “Q. You signed your name there? A. Yes, sir, that is mine. Q. Now I see the name of J. H. Johnson in here. A. Yes, sir, that is here. Q. Did you have any talk with the assessor about that? A. Yes, sir, I did. I told him I didn’t know how it came in there. Q. And what did he say to you ? A. Well, he said he was obliged to put it in on account it was on the Webster books. That is what he told me. Q. And thdt is the way you signed it? A. Yes.”
Defendant objected to this testimony because it contradicted written declarations by parol, but we think it was proper by way of explanation.
The defendant did testify in chief that plaintiff after the death of her husband, agreed to pay him $185 a year rent and that she had paid $100 on the rent under that agreement. We shall not attempt to set out defendant’s testimony in detail, but his testimony is very unsatisfactory, and it is contradictory and inconsistent with his conduct, and inconsistent with itself. He 'admits that $100 was paid by her but once, and this was November 28, 1899, less than two months after plaintiff’s husband died, and when there could be no rent due for the use of the premises after the death of Mr. Erickson. He finally admits, on cross-examination, that she never did pay him a cent of rent, but says that she promised to. The receipt for this $100 was produced and offered in evidence. It is signed by defendant and reads: “Received of Mary Erickson one hundred dollars to apply on account of Peter Erickson.” Plaintiff admits the payment of this money and says it was a part payment on her husband’s debts to defendant, and denies that she ever paid any rent or promised to do so. Again, on the trial, defendant attempted to give a detailed statement of the consideration for the deed and produced a statement in which are itemized the amounts he claimed he paid for the half interest in the land. It is immaterial, perhaps, as to the matter of adverse possession, what he paid, but we shall refer to this matter briefly to show some of the con
“Q. And now isn’t it a fact that when Mr.. Erickson came to pay the $98.33 note, he had to borrow part of the money to do that? A. I suppose that was the wrny of it. We borrowed the money together and signed the note together. Q. And didn’t he, when he paid the balance of that note, bring the note to you, and these notes to you, to show you that they had been paid? A. Well, that must be the way because — I must have paid my share of it because — Q. Well you don’t have any recollection, do you, Mr. Johnson, that you paid your share? A. Well, I can’t recollect. I don’t believe I would have had these notes in my possession unless I had paid my share.”
Some of the items in this statement have not been so successfully refuted by plaintiff as those just referred to. It is possible that defendant did assist Erickson in the purchase by Erickson of the land.
Defendant testifies that .at different times he had conversations with plaintiff in which they talked of dividing the
There may be some other matters not specifically noticed, but, from the entire record, we are satisfied that the facts are established substantially as we have heretofore given them. It is very clear to us that the conduct of the defendant was not that of a man who owned an undivided half interest in 160 acres of good farming land.
3. It is next contended by appellant that a warranty deed reciting a valuable consideration cannot be shown by parol to be without consideration, citing eases. As bearing somewhat upon this point, see State Bank of Stratford v. Young, 159 Iowa 375, 385, which states the general rule that the recitals of a written instrument as to the consideration are not conclusive, and it is competent to inquire into the consideration, and to show by parol what the real consideration was. However, we think it unnecessary to determine that point in this ease, because other points discussed are decisive.
Plaintiff’s possession alone would not ripen into title by adverse possession. The evidence shows that plaintiff in good faith made improvements on the land, used and occupied it as her own and claimed it as her own under the deed from her husband. This deed was color of title, and she also claimed to be the owner thereof and thereunder, so she had both color of title and claim of right. She was informed when her deed was delivered to her that her husband owned the whole of the land, and she believed at the time she received the deed that he owned the farm and that he was conveying to her all of the title thereof. Her deed was recorded soon after it was delivered, and she told defendant it was her farm. These are only some of the circumstances tending to show that she was in good faith claiming to be the absolute owner, and as bearing on the question of defendant’s notice or knowledge thereof.
Defendant exercised no acts of ownership and made no claim for more than ten years. He had notice that plaintiff was so claiming to be the absolute owner of the land. The evidence has already been referred to and will not be now repeated. Under the evidence, we think there was an ouster. As stated in some of the eases, express notice does not seem to be necessary, but there must be such acts of repudiation as to bring home to the grantee knowledge of the fact that a disclaimer is made. The evidence is sufficient to show not only that plaintiff, but also her husband, remained in possession of
"We shall not attempt to review the cases, but some of them hold that where, as in this case, a person takes possession of land under a deed, the fact that he pays the taxes, breaks up the land, tiles the land, erects buildings and makes improvements thereon, cultivates the land, year after year, pays off the mortgages, mortgages and remortgages the premises, makes application for mortgages in which he claims absolute ownership, pays ditch taxes and openly claims to be the owner of such land for a period of ten years, with the knowledge of a co-tenant, such possession is adverse, and the statute of limitations runs as against such co-tenant. See Laraway v. Larue, supra; Casey v. Casey, 107 Iowa 192; Blankenhorn v. Lenox, 123 Iowa 67; Knowles v. Brown, 69 Iowa 11.
Appellee contends that where a party unduly sleeps on his rights to the prejudice of another, he is estopped from afterwards asserting his rights, citing McBride v. Caldwell, 142 Iowa 228; Iowa Railroad Land Co. v. Fehring, 126 Iowa 1; Bullis v. Noble, 36 Iowa 618; Lucas v. Hart, 5 Iowa 415; Foster v. Bigelow, 24 Iowa 379; Schafer v. Wilson, 113 Iowa 475, 479; Ross v. Ferree, 95 Iowa 604. But, in view of the conclusion we have reached on other points heretofore discussed, we deem it unnecessary to discuss or determine this point as applied to the facts in this case.
The appellant cites Goulding v. Shonquist, 159 Iowa 647.
Other points are referred to, but those we have noticed are controlling. We reach the conclusion that' the decree of the district court was right, and it is, therefore — Affirmed.