196 Iowa 1191 | Iowa | 1923
The defendants deny the validity of the deed, denounce it as a forgery, and deny that there has ever been a valid and sufficient delivery thereof.
I. This issue is .the vital question in the case, and upon it has been waged a most determined contest by the parties in
“May 29, 1903.
“This deed to be sent to Los Angeles for record in the event of my death if I am still the owner of the lots. ’ This deed is*1195 made to save administration expense. Should a portion of the lots have been sold before my death, such lots can be erased from deed before sending forward for record. Of course, this is only to be done should my wife survive me.
“A. C. Leighton.”
These deeds were at once recorded. In the same box there was another package, containing the deed and abstract of title to the homestead. This package was wrapped, and tied by a tape, and upon it was indorsed the word “Home,” and, according to the witness, it was not then opened or examined. Later, it appeared that, during his lifetime, Leighton had entered into contracts to convey to purchasers two lots in Omaha, Nebraska, the deeds for which had not been delivered at the time of his death. The purchasers having then demanded conveyance, a search through Leighton’s papers was made, and a deed for one of the lots, duly executed, was found and delivered. On the theory that a deed to the other lot must also have been made, and that, if found, it would save the expense of probate proceedings in Nebraska, search was renewed and continued by the appellee and one Benson, appellee’s nephew and business manager ; and on the suggestion of the latter, appellee again brought out the box to which reference has been made, and its contents were examined. On this occasion, the package marked “Home” was for the first time untied, and when it was opened, there appeared, folded therein, the deed to appellee of the Market Street property, or “Leighton Block,” so-called. According to these witnesses, there was attached to it by a clip a written memorandum, in the handwriting of the deceased, as follows: “ To be recorded at my death.” This slip has been lost, and is not in the record, except as shown by the testimony of appellee and Benson. Immediately upon the finding of this deed, it was recorded, and the instrument has since been in the widow’s possession.
Much stress is placed by counsel for appellants upon the thought that the delay in the alleged discovery and production of the deed for two years stamps it as a fraud, and justifies the conclusion that the instrument is spurious. As we have already suggested, if the truth of this story depended alone on the verac
Passing, for the present, the effect to be accorded to the personal testimony of the appellee, it is proper to consider the argument of the appellants with respect to the physical condition and appearance of the deed, a photographic copy of which is in the abstract. It is made upon a printed blank, of the usual and familiar form in common use, and used in Iowa. Except the description of the property, and the word “Wapello,” which are typewritten, the blanks are filled in with pen and ink. It is dated April 21, 1906. The certificate of acknowledgment is signed by Emmet A. Work, notary public of Wapello County, with the impress of his notarial seal. The signature of A. C. Leighton, subscribed to the deed, is also witnessed by Mr. Work. It is shown beyond doubt that, excepting the signature of the notary public, all that part of the deed written in pen and ink is in the handwriting of the deceased, A. C. Leighton. The features of the instrument on which counsel rely to sustain their theory of its false and fraudulent character are the following: In the blank provided for the name of the county in which the property is situated, appears to have been first written the word “Los Angeles.” Through this word a pen and ink line has been drawn, and “Wapello” inserted by a typewriter. Following the name of the county, the printed blank had the word “Iowa.” An ink line had apparently been drawn through this
“When the owner of property in good faith makes a voluntary conveyance of it to those who would naturally have a claim upon his bounty, courts of equity are strongly inclined to uphold the conveyance, and will do so unless impelled to the opposite conclusion by strong and convincing evidence.” White v. Willard, 232 Ill. 464 (83 N. E. 954).
“The law has a regard for the relationship of the parties and the motives that are presumed to dictate such conveyances, and the degree of confidence which the parties standing in such relation, as donors and donees of valuable property, are presumed to have; and in such case the presumption of law is.that there was a delivery; and when brought in question, the 'burden is upon the grantor, or those claiming adversely to the donee or beneficiary, to show clearly that there was no delivery.” Chapin v. Nott, 203 Ill. 341 (67 N. E. 833).
And again:
“In cases of voluntary settlements, the mere fact that the grantor . retains the deed in his possession is not conclusive against its validity, if there are no other circumstances besides the mere fact of his retaining it, to show that it was not intended to be absolute.” Henry v. Henry, 215 Ill. 205, 211 (74 N. E. 126).
See, also, as bearing upon this proposition, Souverbye v. Arden, 1 Johns. Ch. (N. Y.) 240; Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329; Scrugham v. Wood, 15 Wend. (N. Y.) 545; and, as very much in point with the instant case, McKemey v. Ketchum, 188 Iowa 1081.
The instant case rests upon a stronger basis than the pre- ■ sumption just referred to, because there is evidence of the actual manual delivery of the deed to the wife. True, she does not show nor claim that she knew of the deposit of the deed in her box until after the grantor’s death. But her personal knowledge of the act was not, as we shall see, essential to the effectiveness of the delivery. The placing of the deed in her private box was placing it in her possession, and the intention that it should operate as a delivery and an effective conveyance is to be presumed from the language of the instrument itself. The conveyance, being regular in form, and containing no provision or condition imposing upon the wife any obligation or burden, is of such valuable character that her acceptance of it is taken for granted, even though she .had no knowledge of its existence until after her husband’s death. In re Estate of Bell, 150 Iowa 725, and cases there cited. That the box in which the deed was found belonged to appellee, and' was used by her as a place for
Further discussion of the essential features of a valid delivery is not called for. Appellants concede the rule that the intent of the parties must prevail; and, applying that test to the facts shown in evidence, we hold that there was a good and sufficient delivery of the deed from Leighton to his wife.
A case somewhat analogous in principle is Matheson v. Matheson, 139 Iowa 511. There, the husband made a deed of land to his wife, leaving it with the lawyer who drew it, with instructions to deliver it to the woman. It was so delivered. Later, he succeeded in getting possession of the paper, and destroyed it. With the title in that condition, the husband died. Supposing that the destruction of the deed had eliminated her right in the property,. she listed the land as a part of her husband’s estate. It was also shown that, after the deed was destroyed, the husband, in -his lifetime, mortgaged the property, his wife joining therein. We there held that the widow’s mis
We have also held in a recent case that the act of the widow in obtaining a year’s allowance against her husband’s estate did not estop her from afterward'electing not to take the benefits provided by his will, and demanding her rights under the statute. See Nick v. Nick, 195 Iowa 351. The plea of estoppel is not sustained by the evidence.
IV. The argument upon the legal proposition that a deed made in blank, or without designating the property to be conveyed, is void, appears to us to be without relevance or application to the case before us. No deed of that character is before us, and no claim is based upon such an instrument. It is true that there is evidence tending to show that, as first prepared, the blank in the deed for the description of the property was not filled in; and if it were shown that, when delivered, the blank remained unfilled, or if it were now unfilled, it would be a void instrument. But if a grantor having such an incomplete deed in his possession fills in the blank with the description of property which he has a right to convey, and delivers it to a named grantee, there is no apparent reason why such deed will not be as effective as if there had been no irregularity in its preparation.
Y. Nor do we think that any estoppel can be predicated upon the fact that appellee has attempted to execute the trust created by the will. Her claim to be the owner of this property is not obnoxious to the rule which forbids a trustee from wasting or absorbing the subject of the trust for his own profit. If the deceased had conveyed away the title to the Leighton Block in his lifetime, it formed no part of the trust property, and the beneficiaries of the trust acquired no right or interest therein, either legal or equitable.
The vital issues in the case are the two mentioned at the outset, and these are: First, is the instrument in controversy the genuine act and deed of Alvin C. Leighton? Second, if the genuine character of the writing has been established, was there a valid and sufficient delivery ? Since we find in the affirmative upon both these inquiries, other questions argued by counsel are
The decree of the trial court is, therefore, to be affirmed. We think, however, that the costs certified to this court upon the item for printing the record are excessive in the extreme; and it is ordered that this expense be apportioned. The printing of 350 pages will be taxed to the appellee, and the remainder to the appellants.
The decree of the district court is — Affirmed.