52 Iowa 272 | Iowa | 1879
The preponderance of the evidence is with the plaintiff. The fact that the deed was not executed by Mrs. McClain, and that she was not requested to execute it, together with the fact the homestead was not included in the conveyance, tends to support the theory of the plaintiff.
Coupled with the foregoing is the further fact that there was no change in the possession, or account rendered by J. D. McClain to the defendant of the rents and profits, nor claim made therefor by the latter, which, together with the acts, conduct and declarations of the defendant constitutes a decided preponderance of evidence in favor of the plaintiff and the theory advanced by him.
Mrs. J. D. McClain died in 1860, and the defendant claims that during her last sickness he promised her he would take care of and provide for her children. In 1864 the defendant, having in contemplation a trip to the mountains, the duration of which was uncertain, and as he claims in fulfilment of his promise, executed a deed conveying the undivided one-half of certain lands, and delivered the same to J'. D. McClain, with directions and authority, if the defendant never returned, to fill up a blank left in said deed for the grantee, with the names of Mrs. McClain’s children. The deed, according to the evidence of the defendant, was full and complete in all its parts, excepta blank was left for the names of the grantees, and the blank for the consideration was unfilled.
The plaintiff claims the deed was full and perfect except a blank for the name of the grantee, and this J. D. McClain was fully empowered to fill with the name of any person he saw proper, and that in pursuance of such authority the plaintiff’s name was written in said blank, and thereunder he claims partition of the premises.
Previous to this the deed had by some means been torn, and was greatly mutilated, as the plaintiff claims by accident, but the defendant claims it was jiurposely mutilated with intent to> destroy it. The original deed is now before us, and if there was no evidence besides the deed it would be difficult, if not impossible, to determine which theory was correct. If the object was to destroy the deed so it could not become a valid conveyance, it is difficult to see why it was not more effectually accomplished. The preservation of the different parts is inconsistent with such theory. The defendant saw the deed after it was torn, had it in his hands and read it, talked about it, a fire being near, and yet the deed in its mutilated condition was preserved. On this question the decided preponderance of the evidence is with the plaintiff.
The defendant testifies the deed he saw was torn differently from the one introduced in evidence, but he admits he never executed but one deed, and that the one he saw was such deed-lie must, therefore, be mistaken as to the manner it was torn. As to the identity of the deed executed by the defendant there can be no doubt. It .is the same one introduced in evidence, and now before us. From an inspection of it we feel satisfied the only blank therein at the time it was signed by the defendant was the one left for the name of the grantee. The evidence of Mr. Napier and others satisfies us. the defendant did not own or claim to own but an undivided one-half of the premises in controversy, and the decided preponderance of the evidence is that the deed was executed for the purpose of enabling J. D. McClain, by the insertion of the name of a grantee, to vest the legal title to the other undivided half in whoever he saw proper. In this there was nothing unreasonable, because the said J. D. McClain was the equitable owner of the undivided half of said real estate.
The blank in the deed having been filled with the name of the plaintiff as grantee, the conveyance vested in him the legal title. This was held in Swartz v. Ballou, 47 Iowa, 188. With
The only circumstance which has a tendency to cause a doubt whether the deed should have such effect is the length of time which elapsed between the execution and delivery, and the insertion of plaintiff’s name as grantee. This in the absence of any explanation would be a formidable objection. But it sufficiently appears the deed was mislaid for a time, and when found it had been torn and mutilated, and whether it would operate as a valid conveyance if the name of a grantee was inserted was doubted by J. D. McClain, because of the mutilated condition of the deed. During this lapse of time, or a portion of it, J. D. McClain was endeavoring, as he testifies, to get the defendant to execute another deed. Knowing these things the defendant took no steps to revoke the deed or authority given, nor would he execute another conveyance. The probabilities being that liej too, thought the -mutilated deed could never be made available as a valid conveyance, and that he could not be compelled to do what he in good conscience should cheerfully have done. We, therefore, think the judgment below on the defendant’s appeal must be affirmed.
Affirmed.