137 Iowa 220 | Iowa | 1908
In February, 1904, Selby B. Moran, late of Hardin county, died testate, and during that year his will was duly admitted to probate in said county. The will nominated Iowa L. Moran, wife of the testator,, to be executrix, and in due time she qualified, entered upon her duties, and still continues to act as such. Among other devises made by the will, there was devised to said Iowa L. Moran title in fee simple to certain lands, particularly described in the petition in this action, and situated in Hardin county, the record title to which lands was standing in the name of the testator at the time of his death. Said testator also left surviving him six children, born to him by a former wife — one daughter, now by marriage Virginia Richards, and five sons, Lee, Frank, George W., Eldon, and Selby A. Moran. Of such children the first four named are plaintiffs
It is then alleged that after the execution and delivery of said - deed to Miranda Moran the same came into the possession of her said husband for the sole and only purpose of having the - same placed and made of record in said county; that said Selby B. Moran, in disregard of the rights of his wife, and with intent to- wrong and defraud her and her children, erased from said deed the name “ Miranda ” wherever the same occurred therein, and inserted in place and stead thereof his own given name; that thereafter, and in the year 1872, and in furtherance of his scheme and purpose to wrong and defraud his said wife and her children, he caused said deed as so changed and altered by him to be placed and made of record in said county! The death of Miranda Moran in October, 1885, intestate, is alleged, and it is said that she died without having acquired any knowledge of the unfaithfulness and fraud on the part of her husband, and believing that he had carried out her instructions respecting the recording of said deed as the same was executed to her. It is then alleged that in furtherance of his intent and scheme to wrong and defraud these plaintiffs the said Selby B. Moran commenced
The marriage of Selby B. Moran to the defendant Iowa L. Moran is then alleged, as also the death of the former in February, 1904, and probate of the will is alleged. Proceeding, plaintiffs say that until the death of their father, said Selby B. Moran, in 1904, they had no knowledge or means of acquiring knowledge of the fraud so committed and concealed by him, and they supposed he was in truth the owner of the lands as disclosed by the deed so by him fraudulently altered and placed of record. And, based on the facts so pleaded, they now assert that their mother, the said Miranda Moran, was seised of title to said lands in fee simple as of the time of her death, and that upon the happening of that event they became clothed with the fee as by descent, and so now hold title to the same. The deed as altered and recorded, the decree in the action to quiet title, and the probate of the will are alleged to constitute clouds upon their title thus derived, and the prayer is for a decree confirming and quieting title in them. The answer of Iowa L. Moran, appearing for herself and as executrix, in addition to a general denial, and among other things, pleads ownership of the lands in controversy in Selby B. Moran at all times up to his death; pleads by way of estoppel that the alteration in the deed from Peter Moran was with the knowledge and acquiescence of Miranda Moran, and that the same was done to make the record title correspond to the true ownership of the property; pleads the action, reference to which is made in the petition, commenced by Selby B. Moran, and the decree entered therein in bar.
We may concede that, if the execution of the deed had been brought about as the result of contract relations between -Peter and Miranda Moran, or even between the latter and her husband, Selby B. Moran, a different conclusion might be dictated. It is easy to see that out of some such situation the relation of principal and agent as between-the husband and wife might have arisen, so that a delivery to the former would amount in law to a delivery to the latter. But, as we have said, the record stops short of anything upon which to predicate a finding for such relationship. And it is clear that the burden was on plaintiffs to make the necessary fact showing.
Now it is' fundamental in the law of real estate that title does not pass until there has been a delivery of the
In the circumstances of this case, however, an exception to the general rule is not called for. As Peter Moran was possessed of only the naked legal title, his intention is of but little if any importance. ' The right of disposition was in Sélby B. Moran. He might destroy the deed if he chose, and, regarded as an instrument purporting primarily to be executed in favor of his wife, he did destroy it, in effect, when he erased her name appearing therein as grantee. The filing of the deed for record can have no bearing on the question of delivery. The instrument had then been changed and the intention evidenced by the act of filing was to prevent title passing to Miranda Moran.
The conclusions expressed foregoing are sufficient to dispose of the appeal, and we need not concern ourselves with any other questions presented in argument. The decree appealed from is affirmed.