145 Iowa 687 | Iowa | 1910
The defendant Marie McCall is the surviving widow of J. E. McCall, deceased, who died without issue. The other defendants are collateral heirs and devisees under his will. The claim of the plaintiff is based upon a deed executed and delivered to him by J. E. McCall on March 21, 1895. The following is a copy of so much of the deed as is material for our present consideration: “Know all men that I, J. E. McCall, in consideration of the sum of $100 in hand paid by J. M. Maxwell do hereby grant, bargain, sell and convey unto the said J. M. Maxwell, his heirs and assigns, forever, the following described real estate situated in Washington County, Iowa, to wit: A strip of land for road purposes, forty feet in width described as follows, to wit: [Description.] Excepting and reserving the use and possession thereof so long as the grantor shall live, then full possession shall pass to the grantee. And the said grantor hereby warrants.the title to said premises against the lawful claims of all persons whomsoever.” This deed was duly acknowledged and recorded
The strip in dispute had a market value of $60 or $70 per acre. The plaintiff did not in fact pay any money for the land, although the deed stated a consideration of $100. The prayer of the first count of the petition (which is the only count we will consider), is as follows: “Wherefore plaintiff prays that this plaintiff be ordered, adjudged, and decreed entitled to the possession of the premises described in the caption of this petition for road purposes, so long as the same shall be so used, with the privilege of erecting fences thereon, and maintaining the same as a highway; that defendants and each of them be ordered to yield immediate possession of said premises to this plaintiff ; and for such other and further relief as may be deemed just and equitable in the premises; and that the defendants be adjudged to pay the cost of this proceeding.” The issue made by the answer was that the premises described in the deed were a part of the homestead occupied by the grantor and his wife, and that such deed was not signed
We think the decree of the trial court was right, and it is,, affirmed.