Nordman v. Meyer

118 Iowa 508 | Iowa | 1902

Sherwin, J.

At the time of her death Catherine Nordman was the owner of the land in question, and the record title thereto stood in her name, and has so remained to the present time, for her estate was not administered upon. Whatever interest the plaintiff, as the heir of her deceased father, may have therein adverse to the interest of the defendant, must therefore, be derived from the interest, if any, which her father took from his daughter Johannah by virtue of the alleged oral agreement of June, 1890. That the burden of proving the alleged agreement and its consummation is upon the plaintiff is elementary and conceded, and, were it not for the fact that the principal evidence in support thereof is clearly incompetent under section 4604 of the Code, we should be inclined to the view that the plaintiff .has sustained the burden cast upon her.

It must be borne in mind that the plaintiff, as the-heir of her deceased father, is attempting to establish in herself an interest in real property adverse to the interest which the defendant claims as the devisee of his wife, and that, in order to do this, it is necessary for her to prove' an oral agreement between her deceased father and sister. Aside from the testimony of herself and her husband* there is nothing in the record which would warrant us in granting the relief prayed. True it is that the execution of the mortgage of $1,400 to the plaintiff and her sister by Dood, and its subsequent collection by them is a circumstance tending to show that some kind of an arrangement or settlement was consummated at that time; but this alone, or in connection with other slight matters pointing in the same direction, is not sufficient to justify a judgment for the plaintiff. Indeed, these matters are not, in themselves, inconsistent with the fact that Henry Nordman exercised control over the property during his life, and collected the rents and profits therefrom, if we consider the testimony of Conlee, who says that the $1,400 mortgage was given to the daughters in consideration of their consenting to the father’s life use of the entire real estate left by their mother.

It is strenuously contended that the plaintiff and her husband were competent witnesses under the statute to testify to the agreement with Johannah Nordman, but. with this we cannot agree. The will of Johannah W. Meyer gave to her husband, the defendant herein, all of her real and personal estate. He therefore is the devisee of the property in controversy, and as such defends Ms title against the claim of the plaintiff', who, as we have heretofore seen, cannot establish her title thereto except upon proof of an oral agreement either made with or authorized by Johannah Nordman, by virtue of which Henry Nordman became the owner in fee of the estate she derived from her mother, Catherine Nordman, by inheritance; and to prove this fact is^ to prove a personal transaction with a deceased person. This will was duly probated, and the record of its probate, together with the will and the ©ther evidence in the case, leave no room for doubt as to the defendant’s standing in this case. And as the devisee ©f an interest in property which his wife was admittedly the owner of up to the time of the alleged agreement of. settlement, lie is one of the statutory class against whom the evidence in question is not competent. French v. French, 84 Iowa, 655; Clark v. Ross, 96 Iowa, 402; Shuman v. Supreme Lodge, 110 Iowa, 480. There is no laches apparent on the part of the defendant which should not apply as well to the plaintiff. There is nothing to indicate that he has been less diligent in asserting his legal rights than has the plaintiff or Henry Nordman. When his interest in the property was assailed, he defended, and has met the situation fully and fairly. There is no merit in the motion to strike the appellee’s additional abstract, and the same is overruled.

The judgment is aeeirmed.