Richardson v. Grays

85 Iowa 149 | Iowa | 1892

Given, J.

I. The appellees moved to . strike the evidence from the abstract and affirm the judgment or dismiss the appeal, for two reasons, namely: That all the evidence was not extended into longhand by the official reporter, and filed.and certified within the time prescribed; and that there is no certificate of the trial judge to the extended shorthand notes, nor any of the documentary evidence identified by him.

The correctness of the abstracts being questioned, a transcript has been filed, from which it appears that 1. Practice: equity cause: documentary evidence: record. all the oral evidence was taken in shorthand, and the notes properly certified by ' x. ±. * the judge, filed on the day the decree was entered, to-wit: May 2, 1890, and that a transcript thereof was filed May 24th following. Tlxe documentary evidence is sufficiently identified by dates and otherwise in the shorthand notes and transcripts thereof, and is attached' in the original form to the transcript of the record and evidence certified by the cleric. The ground of this first complaint seems to be that the reporter did not copy the documentary evidence into the transcript of the shorthand notes.v This is not required. All such evidence must be certified, “not by transcript, but in the original form” in equity causes. Code, section 3184.

The judge’s certificate in due form is attached to the shorthand notes, wherein the documentary evidence filed with and certified by the cleric, is sufficiently identified, and the transcript of the shorthand notes, duly certified by the reporter and filed within the time required, sets forth a copy of the judge’s certificate attached to the shorthand notes. The certification is the same as in Ross v. Loomis, 64 Iowa, 433, which was held to be sufficient. See also Merrell v. Rowe, 69 Iowa, 654. The motion to strike is overruled.

II. The following facts appear without question: On September 1, 1860, a patent issued from the United 2. Conveyances: delivery of deed: evidence. States to Ebenezer Richardson, Jr., for the lands in question, and under date of March 5, 1873, he executed and acknowledged a warranty deed, in due form, written upon the back of the patent, conveying the land to his grandson Harry Richardson, the plaintiff herein, then about one year old, and residing in the state of Michigan, in consideration of love and affection and the sum of one dollar. This deed was acknowledged before Robert B. Arnold, a justice of the peace of Wayne county, Pennsylvania, and witnessed by said Arnold and one Martin Reafler. At the tax sale held in October, 1874, said land was sold to the appellee Rinaldo Grays, for the taxes of 1872 and 1873, and thereafter, on April 12, 1878, notice to redeem having been given as required, the treasurer of Calhoun county executed and delivered to said Gray a, tax deed for said lands, which was filed for record on the thirteenth day of April, 1878, and duly recorded. Soon thereafter Gray went into possession of the land, improved the same, and has ever since remained in possession.

The controlling question, and the first one discussed, is whether there was such a delivery of the warranty deed from Ebenezer Richardson to the plaintiff as to vest title in the plaintiff thereunder at the time of the tax sale, in October, 1874. The testimony upon that subject is as follows: Mr. Richardson, being asked, “How did you deliver said so-called deed to Harry Richardson!” answered, “I delivered the deed of assignment, as written on the back of the patent, to Robert B. Arnold, a justice of the peace for said county of Wayne, in the name and for the sole benefit in trust for my grandson, on the fifth day of March, 1873.” He was further asked: “State all you know concerning the return of assignment and patent deed; state fully;” to which he answered, “I know that I have been the principal custodian of the deed of assignment since the delivery of it by Justice Arnold to me for my said grandson. My grandson was living in Michigan at the time. Arnold and myself were living in Hawley, Pennsylvania.” Mr. Offenback testified to having a letter introduced in evidence from Ebenezer Richardson, in reply to inquiries made of him concerning the land, in which he said he was owner of the land, and paid taxes to February, 1872. That “soon ■after that time I assigned the patent to my grandson, then an infant; whose. parents lived in Michigan, and the taxes were neglected from that time. Probably ■about three years ago the patent and assignment were returned to me from Michigan. The assignment is on the back of the patent, but never recorded, and can readily be canceled, as the matter stands. I can enter into negotiations for conferring title to purchaser, but am not, in need; consequently am perfectly easy until owner becomes of age. I understand the land has become valuable. However, if the person in possession will make a reasonable proposition, it will be ■considered. A legal gentleman in your vicinity has .some time since offered to prosecute for one half the ■proceeds. May yet send to him for prosecution. It is urged by the child’s father.” The plaintiff produced .and introduced in evidence on the trial the patent, with the warranty deed written on the back thereof, neither ■of which was ever filed for record or recorded. The •defendant, Lizzie Nowlin, holds a mortgage from the defendant Gray, and, as her rights depend upon his title, they need not be further noticed.

It is the law that, where a deed is in the custody of the grantee, it,will be presumed, in the absence of proof to the contrary, to have been delivered to and .accepted by him. Wolverton v. Collins, 34 Iowa, 239; Blair v. Howell, 68 Iowa, 622. In cases like this, the question of delivery depends upon the intention of the .grantor. The courts will presume acceptance by the minor if the grant is for his benefit. Tallman v. Cooke, 39 Iowa, 402. The presumption that arises from the production of the deed at the trial by the next friend ■or the attorney of this minor, the plaintiff, is not as .strong as if produced by the grantee in person. It is not shown that the appellant (though seventeen years ■of age at the time of the trial) or his parents, with whom he lived, ever saw or knew of the deed. It was left with Mr. Arnold upon its execution, who, so far as appears, was a stranger to the plaintiff, and who continued to hold it until returned to the grantor, who ,says that he has been the principal custodian of it since Arnold returned it to him. True, he says in the letter in evidence that it was returned to him from Michigan, but either that or his statement in his testimony is not trae; and as the statement is sworn to, and there being no evidence that the deed was ever seen or known by the grantee or his parents, we accept his testimony as-correct. These facts overcome any presumption that might arise from the production of the deed on behalf of the plaintiff at the trial. The real inquiry is as to-the intention of Ebenezer Richardson, and our conclusion is that he never intended to vest the title to the land in the plaintiff by this deed. We reach this conclusion from the fact of the tender age of the plaintiff; that the land was left uncared for by payment of taxes or otherwise; that neither the plaintiff nor his parents were informed of the conveyance; that the conveyance was left with a stranger to the plaintiff, and possession thereof resumed by the grantor; and the readiness of' the grantor to cancel the deed, and to enter into negotiations for conferring title upon a purchaser, as expressed in the letter to Mr. Offenback. It follows from these conclusions that the plaintiff is not entitled to redeem from the tax sale and deed under which the appellee Gray holds the land, and that his petition was properly dismissed. As this conclusion fully disposes of the case, other questions discussed need not be-noticed. Affirmed,