168 Iowa 441 | Iowa | 1913
On the 20th day of April, 1910, deceased Linder made a will whereby he devised all his estate, both real and personal, subject to the share that his widow was, by law, entitled to, to Andrew Johnston, the plaintiff herein, and in the event of his death, to his heirs. This will was duly admitted to probate and thereunder plaintiff claims title to all, save the widow’s one-third of the land, now in controversy. The ease has had a rather remarkable history and the record is very voluminous and, although but a single ultimate question of fact is involved, there are many side lights of more or less importance, which are unusual in character and difficult of satisfactory explanation. These things will appear as we proceed.
John Linder was the sixth husband of Harriet C. and at the time of his death had been married about nine years, although then living apart from his wife. He had no children ; but his wife had three, the result of her first marriage to a man by the name of King. These children, or their successors, are defendants in this- case. Harriet C.- Linder acquired title to 400 acres of the land in controversy through her third husband, Freeman Wright.
Before her marriage to Linder, she had become much involved, and about two years before her sixth venture on the matrimonial seas, she conveyed 437 acres of the land to E. A. Howard and J. E. Roth, who assumed and were to pay off all her liabilities, and who leased the land to Mrs. Linder at a yearly rental of $1,000.00, agreeing to reeonvey upon payment of $22,000.00, within two years from the date of the conveyance. Mrs. Linder did not make this payment and the matter ran along until January of the year 1901, when, having found a purchaser for the land, they served notice upon Mrs. Linder, then known as Mrs. Duncan, of their intention to forfeit the contract. This notice was served February 6,
Upon taking his appeal from the decree in the divorce case, Linder applied to an agent of a surety company for a supersedeas bond and in answers to questions as to his property, stated that he was the owner of the 498 acres of land in controversy, and upon the strength of his representations, the surety company signed his bond, which it has since been compelled to pay.
The deed, under which defendants claim, was not filed for record until after the death of John Linder. Witnesses, expert and non-expert, were examined on the part of each of the parties to the case and the trial court limited the number of experts which each might use to six. Plaintiff used his full quota, but defendants used four only. In addition thereto, a large number of genuine signatures, made by John Linder at various times from the year 1901 down to the time of trial, were offered in evidence for comparison with the ones in dispute. Of the four experts used by defendants, but one had even seen Linder write his name and they gave their opinion
In addition, something like nine witnesses testified more or less directly to the making and delivery of the deed; and of this number, two, one the notary and another a neighbor, were disinterested, save perhaps as the notary was trying to establish a signature which purports to be his, upon a paper which is impressed with his seal. The other witnesses were, however, more or less interested. John Linder is dead, and, of course, his mouth was closed but some support is claimed from declarations made by him regarding his failure to deed the land to Mrs. Linder’s relatives. Were it not for this direct and positive testimony, we should have more trouble with the case than if it rested upon opinion testimony alone, and with it, the ease is by no means clear. Indeed, we have rarely had a case which has given us more trouble on the facts and our conclusion has not been arrived at without great hesitation and fear that we, perhaps, have been misled by the great
It is useless to attempt a close analysis of the testimony; for, as already observed, the record is very lengthy and anything like a fair statement of the many points relied upon in confirmation of the disputed signature and of the matters which, it is claimed, tend to prove that it is a, forgery, would require many pages of printed matter, and even then the parties would not, perhaps, be convinced of the correctness of our conclusion, feeling that some matters had been overlooked. Moreover, such an opinion would be of no benefit to anyone, except to demonstrate, perhaps, a thorough consideration of the case. This, however, may be assumed from the fact that we have held it over several periods and have given it most painstaking consideration.
Mrs. Linder acquired the title to the bulk of the land from one of her husbands, Freeman Wright. It came pursuant to a claimed antenuptial settlement made between them and as the result of a controversy with the Wright heirs, which resulted in Mrs. Linder’s paying to these heirs a certain sum of money.
When John Linder heard of his opportunity for marriage, he, under an assumed name, made rather diligent inquiry regarding the then Mrs. Duncan’s property and the number of her children and was informed that these children had or claimed some interest in the land. It is shown that she (Mrs. Duncan) had, previous to that time, recognized that she was indebted to them in considerable sums and claims that she put some of their money into the lands. It is also claimed that John Linder agreed to an antenuptial settlement before his marriage and such a paper is produced, signed by Harriet C. Linder alone, in which it was agreed he was to
This deed purports to have been signed on May 29, 1903, and the marriage contract, which Mrs. Linder says was to be made before the marriage was consummated, also bears what purports to be the signature of John Linder, in addition to that of his wife. Many witnesses (of whom some were incompetent under Sec. 4604 of the Code), including the notary public, testified with great positiveness and directness to the actual signing by John Linder of both the antenuptial contract and the deed. They tell us that it was ón a birthday occasion and the time is also identified by a disinterested witness, who fixed the date with reference to a receipt held by him; and, unless these witnesses are held to be deliberate perjurers and some of them forgers, the deed must be sustained.
One trouble with plaintiff’s case is that he has to prove too many forgeries in order to discredit the showing made for the defendants. Some of the witnesses, as we have already said, were incompetent because of interest, under Sec. 4604 of the Code; but their testimony was corroborative of other testimony from entirely competent and disinterested wit
“4. That at or about the time of her marriage to defendant, plaintiff was the owner of four hundred and forty-seven acres of farm land lying in sections Nos. 19 and 30 in Locust Grove township, of said Jefferson county, Iowa, adjoining the town of Batavia and extending some two miles north, including improvements in the way of house, barns and outbuildings erected on said farm by plaintiff at an expense of some five thousand three hundred dollars, the value of said farm being Fifty-five Thousand Eight Hundred and Seventy-five Dollars, or $125 per acre, or thereabouts, subject to.indebtedness at that time of about Twenty-two. Thousand Dollars making her net assets in said farm some thirty-nine thousand one hundred and sev.enty-five. dollars; aside from which she had. on said farm .at that time .live stock, and personal property of the value of three thousand dollars, making her total net worth more than forty-two thousand dollars, ,(•$42,000.).. ■ ,....... - •. • . •,
‘ ‘ 6. That said defendant has invested some five thousand dollars in said farm by reducing the indebtedness thereon, and some $250.00 in the personal property thereon which was increased in value some fifty-eight hundred dollars ($5,-800.00).
“7. Defendant owns some fifty-one acres of land, aside from said farm, and which farm so owned by him and which is situated in said Jefferson County, is worth about five thousand one hundred dollars and is subject to an indebtedness of $1,900.00.”
The prayer of the petition was that “upon final hearing of this cause she be granted an absolute divorce from defendant; that she be restored to her rights in the 447 acre farm aforesaid, together with the personal property thereon justly belonging to her, or its equivalent free from any and all right, title and claim of defendant; or in lieu thereof, that she be granted permanent alimony in the sum Of twenty-five thousand dollars, and for such other' and further relief, both general and special, as to equity may seem meet, together with judgment for costs of this action.”
Various motions were made for temporary alimony and support fund, which were supported by affidavits made by some of the defendants in the present ease, and to which John Linder filed counter-affidavits, and it may here be said that some of the affidavits were contradictory in effect, if not in terms, with the testimony given by the affiants on this trial. John Linder answered and among other things, pleaded the following:
“4. As to the property interests of the plaintiff at the
“5. Defendant denies that the plaintiff at the time of their marriage owned the 447 acres of land lying in Sections nineteen and thirty or any improvements thereon in Locust Grove township, Jefferson County, Iowa, and denies that she held or had any interest therein, and he denies that she owned the live stock or personal property on said farm, excepting the household goods and one dozen chickens.
“This defendant states affirmatively that said 447 acres of land described in her petition was bought by him not from the plaintiff but from others, and out of his own funds in which plaintiff had no interest, and that said land was purchased and paid for with his own money, subject to the incumbrances now thereon which were given by him for money used in the purchase and which he is obliged to pay. And as to the fifty-one acres of land described in her petition defendant states that he purchased same with his own money and funds, subject to the indebtedness now thereon, which represents part of the purchase price thereof and he denies that he has appropriated the property of plaintiff to his own use as alleged.”
He also filed a cross-petition from which we extract the following:
“4. That the plaintiff disregarding her marital vows and duties as a wife since her said marriage to this defendant, has been guilty of such cruel and inhuman treatment of him as to impair his health and endanger his life in this, that shortly after their marriage, the plaintiff began to manifest toward the defendant, a disposition to annoy and aggravate him, scheming in divers ways with other persons to cause him trouble. She annoyed and aggravated defendant in various ways and manners which rendered the marriage relation un
“lie therefore asks the court and prays that he be granted a divorce from the plaintiff on this his cross-bill and that the title to the real estate above and heretofore described herein be quieted in him and that for the reason shown herein, said plaintiff be denied any interest whatever therein and that all rights, titles or interest that the plaintiff might claim or make to any of his property real or personal by means of .their marital relations, be cancelled, annulled and held for naught, and that he be granted such other and further relief as in equity and justice the evidence may show him entitled with costs. ’ ’
On these issues the case was tried in the district court upon testimony adduced, pro and con, and the singular thing about it is that no witnesses on that trial, although many were the same as used on the trial of this ease, referred to the deed of May 29th, 1903. The excuse given for this is that Mrs. Linder told her counsel of the deed and that she was unable to find it and believed it was destroyed and that she was advised by counsel not to say anything about it for the reason that John Linder would deny it just as he had everything else in the ease. This testimony is uncontradicted, although we must confess that such advice was a little singular in view of the issues made on the trial. Still more strange is it in view of the fact that the grantees in this deed gave testimony in support of the claim made by their mother, the plaintiff in the action. But such is the record in the case. The result of that divorce case was a decree dismissing defendant John Linder’s cross-petition and making the following findings and final orders:
“The court however finds that the conduct of defendant towards plaintiff, and the mistreatment he has subjected her to, has been such as to justify her in separating and remaining away from him and refusing to longer live with him; and that plaintiff is entitled to a sufficient allowance from the defendant and out of the property now standing in his name, and the income therefrom to enable her to live separate and apart from defendant; and the court further finds that the sum of forty dollars per month, beginning with January first, 1909, together with such income as plaintiff has from property now in her name, is for the present sufficient for that purpose.
“Wherefore the court orders, adjudges and decrees that the defendant John Linder shall during the month of January, 1909, and on the first of each month thereafter, pay to the clerk of said court, for the separate support and maintenance of plaintiff, Harriet C. Linder, the sum of forty dollars per month so long as she lives separate and apart from the defendant'; the receipt of said clerk for each installment to constitute a sufficient discharge thereof. And that if any such installment be not so paid when due, judgment shall thereupon be entered against said John Linder for all of said installments so unpaid, and, successive judgments may be entered, and execution may issue upon each judgment.
“The court finds that the defendant John Linder and plaintiff Harriet C. Linder as husband and wife have a vested interest in and to the following described real estate, title .to which is held in the name of the defendant John Linder.
“The court at this time, upon the application of plaintiff, refuses to fix or determine the nature or extent of the right, title or interest of either plaintiff or defendant in and to the real estate hereinbefore described, to which plaintiff and defendant each separately at the time duly except.
“The court hereby expressly orders, adjudges and decrees that the findings, orders and decrees in this cause heretofore or now made are, and shall be without prejudice to any action at law or in equity, the plaintiff, or anyone claiming through her, may hereafter institute against the said J ohn Linder with reference to the nature or extent of her or their interest or title do any or all of said described real estate.
“The court further orders, adjudges and decrees that the defendant John Linder shall pay into the hands of the clerk of this court the sum of nine hundred dollars as compensation for the services of plaintiff’s attorneys in conducting the actual trial of this cause. If the defendant elects to mortgage any portion of the above described real estate for the purpose of raising the money wherewith to make the payment of said counsel fees herein required by him to be made or to sell not to exceed 40 acres other than the homestead for said purposes, the plaintiff shall join with him in the execution of such mortgage or deed as defendant may elect, and defendant shall in such event pay the aforesaid nine hundred dollars on or before March 1, 1909, likewise the unpaid costs of this action, and the additional suit money herein provided for. Should the defendant not elect to raise said moneys by the execution of such mortgage or deed then the aforesaid nine hundred dollars shall, be paid by him in three equal installments of three hundred dollars each, payable March first, 1909, May first, 1909, and August first, 1909, with interest at the rate of six per cent per annum upon each unpaid
“This order and decree requiring defendant to pay for the separate support of plaintiff the sum of forty dollars per month, and requiring him to pay the fees of her attorneys in this cause in the sum of nine hundred dollars is hereby declared to be a lien upon all of the land hereinbefore described, to which order defendant at the time duly excepts.”
It will be observed that the trial court expressly refused to settle the title to the land but did make the money judgment a lien thereon, perhaps on the theory that John Linder, the defendant, had a life estate therein, or at any rate some such interest as that a judgment would attach thereto..
The appeal taken from that' decree was never disposed of in this court on the merits, due to failure to file abstract in time, or upon some other technical ground, and the only thing happening thereafter which has any bearing upon the case is that John Linder, in order to secure his appeal bond, made affidavit that he was the owner of the land. Declarations made by John Linder after the time the deed in controversy bears date are offered to- show that he was then claiming title to the land and that his controversy with his wife was over the title, she wanting him to convey it to her children, which he refused to do. These declarations, however, we do not regard as competent, for they were not made as explanatory of his then possession and were in disparagement of what purports to be a prior deed from him. Some of defendants ’ witnesses are placed in such a position by reason of their attitude and their testimony in this divorce proceeding that we
As a necessary rule to the security of land titles, it has frequently been held that testimony from experts, as to the genuineness of a signature, and the results of comparisons made by court or jury are of the most unsatisfactory character.
We quote the following from the recent case of Murphy v. Murphy, 146 Iowa 255:
“The value of such evidence depends largely on the identification and number of similar characteristics or lack thereof between the disputed writing and the standards. The appearance or lack of one characteristic may be accounted as a coincidence or accident, but as the number increases, the probability of being a mere coincidence or accident disappears, and conviction, as in cases of circumstantial evidence, may become irresistible. The court or jury, ordinarily, will derive aid by 'a comparison in the light of testimony by experts, but the non-expert is not able to point out differences or similarities such as mentioned mid their testimony by comparison would be of little or no value if received.
“Testimony of experts by comparison repeatedly has
In Borland v. Walrath, 33 Iowa 130, this court said:
“At all events, a party seeking to defeat his deed, because it was not acknowledged by him, ought to make a clear case against the certificate of the officer in order to overthrow the instrument. Public policy demands that instruments in writing pertaining to the titles of real estate, which are authenticated in the manner pointed out by the law, should not be lightly set aside.” See, also, to the same effect, Whittaker v. Parker, 42 Iowa 585; Browning v. Gosnell, 91 Iowa 448; Blakesburg v. Burton, 156 Iowa 671.
Our conclusion, after carefully considering the entire case and reading the record many times, is, that while there is much doubt regarding the genuineness of the signature in question and also of the one to the marriage contract, the testimony is not such as to justify us in setting aside the deed, especially in view of the finding made by the learned trial judge. The decree must therefore be, and it is — Affirmed.