186 Iowa 1370 | Iowa | 1919
This action was begun October 24, 1913, by B. F. Runnels, through his guardian, Marion E. Runnels, who was also his wife, to quiet title to a certain 400 acres of land, the record title of which stood in the name of B. F. Runnels. The original action was against Janie Anderson and her husband. The defendant Janie Anderson is the daughter of B. F. Runnels, and G. E. Anderson is her husband. On February 7, 1914, Janie appeared and denied the right of the father to have the title quieted in him, claiming that, on or about the 25th day of November, 1886, he gave the land to her; that she took possession under the gift,, and has ever since retained possession; or, in other words, she claimed the land as her own, against any claim asserted by her father, on the ground that she was the absolute and unqualified owner of the same, through an oral gift from him. In this original action, Janie Anderson also filed a cross-petition against her ■ father, asking that the title be quieted in her, on the ground of the alleged gift. The whole matter was standing thus upon the records when B. F. Runnels died, April 20, 1914. Thereafter, and on September 2, 1914, the wife, Marion, who commenced the suit for him as guardian, filed a cross-petition in her own
Upon these petitions, issue was joined, and the cause tried to the court. The court found against the widow, in favor of the defendant Janie Anderson, and found and decreed that she was the absolute and unqualified owner of the land in controversy, under gift from her father, made in 1886, and before any rights of this widow attached. The effect of this was to dismiss the cross-petition of Walter Runnels. Marion E. Runnels, the widow, alone appeals.
The only question presented here for our consideration is one of fact: Was the defendant Janie Anderson the absolute and unqualified owner of the land in controversy, under gift from her father, before any rights of Marion E. Runnels, wife of B. F. Runnels, attached to the land? The law that governs the rights of the parties has been fully settled by our prior holdings.
Before entering upon a consideration of the merits, it • is well to have before us the situation and relationship of the parties during the time covered by this controversy.
It appears that B. F. Runnels was three times married. By his first marriage, he had three children: the defendant, Janie Anderson; a son Irving, who died without issue; and a son Walter, the intervener, who, we understand, is a mental incompetent, and is and has been under guardianship. So that, at the time of his death, he left surviving Mm his widow, Marion E. Runnels, a daughter, Janie Anderson, and this son, Walter. His first wife
directly east of the deeded land, and adjoins it.
Taken concretely, the contention of Marion E. Runnels, the widow,0 is that there was never any completed gift 'of the land in controversy to this daughter, Janie, shown by this record. The only evidence of the oral gift relied upon is found in the testimony of her husband, who claims to have overheard a conversation between B. F. and Janie on the 25th day of November, 1886, in his home on the deeded land. To corroborate this, however, the uncertain testimony of several witnesses is in the record, tending to show statements made by B. F. to the effect that he had given this land to Janie. To the testimony of Janie’s husband and these other witnesses, we will advert
It will be noted that, at the time it is claimed this , gift to Janie was made, B. F. was still married to his second wife, Alice, but was then living apart from her. It is urged that this is one reason why, at this particular time, no deed was executed by B. F. to Janie of the land in controversy. It is urged that it was his thought that he could not make a deed to her without the concurrence of his wife, Alice, and that her concurrence could not then be secured. This is urged as a reason why there was such a radical departure from his method in doing business with
Assuming, for the purpose of argument, that a conversation occurred between B. F. and his daughter, Janie, on the 25th day of November, 1886, substantially as testified to by her husband, G-. E. Anderson, to which we will refer more in detail hereafter, yet it does appear that, in that conversation, he said to his daughter that he could not deed the land to her because his wife, Alice, would not join in the deed. Assuming, for the purpose of argument, that he had it in his mind, then, to. make a gift of this land at some time to Janie, it does appear from that testimony that he at least thought there was an impediment in the way of his doing so. Anderson.testifi.es:
“In their talk [referring to the talk in their home on
This brings us to the only testimony tending directly to establish the oral gift relied upon, and it is substantially this: Referring to the 25th day of November, 1886, and the conversation alleged to have taken place there between B. F. and his daughter, Janie, Gr. E. Anderson said:
“Well, Mrs. Anderson and her father were talking about the settlement he had made with Mrs. Runnels [that is, his wife Alice]. They discussed that some, and they talked about what he had given to Walter, and ended up with what he gave her.”
The question was then asked:
“State what he said and what she said. A. Well, he said that ‘I give you this land here, which is not as much as I have given Walter. It will be all right in. the end.’ He said, ‘Of course, you will have to take care of the mortgages that are on it.’ ”
He was then asked:
“Well, go on and state what else they said about it. A. Well, I don’t remember anything particularly more. I think they drifted on from that to something else. Q. I want to know if anything else was said by either of the parties in regard to the land in controversy, or the, mortgages. A. I don’t remember anything, only a general conversation in regard to the mortgages; that she was to take care of the mortgages, whatever there was on the land. That is my understanding, as near as I can remember. Q. Well, what did he say ? I don’t want your understanding. State what he said. A. Well, he just — that was the windup of the conversation. I think he spoke about what he had given Walter, and what he — the way it came up, I think,
He further testified, touching the land in controversy, that there were 250 acres of the land subject to overflow; that the land was fenced, but not ditched, drained, or tiled; that the ditching was done probably about 1885 or 1886; that the fences had been rebuilt since he had been there; that he thought he put a new fence nearly around it, in the spring of 1894. He further testified that, in the conversation between his wife and B. F., he took no part; that, in the talk, B. F. referred to making a deed at the time to Mrs. Anderson, but said his wife, Alice, would not join in the deed.
Óur statute of frauds, Section 4625 of the Code, provides:
“Except when otherwise specially provided, no evidence of the following enumerated contracts is competent, unless it be in writing and signed by the party charged or by his authorized agent: * * * 4. Those for the creation or transfer of any interest in lands, except leases for a term not exceeding one year.”
The exception to this is found in Code Section 4626, and this exception is that the fourth division will not apply “where the purchase money, or any portion thereof, has been received by the vendor, or when the vendee, with the actual or implied consent of the vendor, has taken and held possession thereof under and T)y virtue of the contract
must be clear and satisfactory, and, as some of the cases say, “conclusive.” Truman v. Truman, 79 Iowa 506; Wilson v. Wilson, 99 Iowa 688. In this case it is said:
“ ‘The evidence of the gift must be direct, positive, express, and unambiguous,’ and must show that the gift has been completely executed. ‘It is, therefore, necessary to the validity of a gift that the transaction be fully completed.’ ”
The same doctrine is announced in many subsequent cases.
Up to this point, the evidence in this case is not such as the law requires to establish a gift. It is not clear, not satisfactory, and certainly not conclusive. The evidence of the gift is not direct, positive, express, and unambiguous. It does not show an executed gift. We may gather from this that B. F. had in his mind, when the impediment was removed, to make a deed to Janie of the land in controversy. The conversation overheard by Anderson does not
It must be borne in mind that, at this time, as revealed by Anderson’s testimony, the old gentleman was discussing his settlement with his wife, Alice. He was reminiscencing over the gifts he had made to his children. He was then in the home of his daughter, on the land deeded by him to her. He was then only 63 years of age, with some considerable expectancy left in life. The record discloses that this 400 acres involved in this suit was practically all his land possessions, of any value, at that time. Not long after the death of his wife, Alice, in January, 1887, he is shown to have been casting about for another mate. He may have had in his mind a purpose, at the time the conversation was overheard by Anderson, to some time deed to Janie this additional 400 acres. Within a month thereafter, the death of Alice left him free to do so, and also left him free to roam in search of another soul mate. B. F. was an infidel. He saw an advertisement for a soul mate in an infidel paper. Here, thought he, is a soul mate for me. He responded to the advertisement, and the soul mate is now his widow. If the daughter should prevail in her controversy, this widow would be left, after 28 years of
We turn now to the evidence offered by the Andersons in corroboration of the alleged gift. This is found in the testimony of neighbors, who claim to have had conversations with B. F. some 20 or 28 years before, touching the gifts that he had made to his children. It would serve no good purpose to set out this evidence. When viewed in the light of the fact that, at the time these conversations were had, he had already deeded to Walter 1,100 acres, and had deeded to Janie 440 acres, the testimony has but little value. The conversations testified to, touching his gifts to his children, seem to be so irrelevant to the subject-matter that called them together, so irrelevant to anything in common between them, that we marvel at the apparent accuracy with which they remember the facts. One testified that, some time after the death of the second wife, Alice, the date of which he does not remember, Runnels spoke to him about his lands; told him his troubles and dislikes; spoke about giving the land down there to Janie; talked about giving the land at Hawthorne to Walter. He testifies that he doesn’t remember how much land there was in the Hawthorne farm; but, after the thumbscrew process of repeated questions, slightly suggestive, he says he thinks he remembers that there were 900 acres in the land given to Janie.
The same is true of another witness, who testifies that he has lived in Nebraska for 20 years; that he never thought of any conversation he had had with Runnels during that time; that, one time, he went to see Runnels about purchasing cattle, — asked him if he wanted to buy some cattle; that Runnels was then living on the Hawthorne farm, owned by Walter; that Runnels said he didn’t want to buy any stock, — didn’t have any property there; further said, when asked why he didn’t put some cattle down at
Another witness testifies that he was a hotel keeper; that Runnels often visited his hotel; that he heard a conversation in which a discussion arose touching the giving away of property before death; that one of the parties remarked that he wanted his administrator to earn his salary; that Runnels said, “Give it away now;” that he had given his daughter 900 acres at Clarinda; that this conversation occurred in 1885 or 1886; that it was before the second wife, Alice, died; that Runnels was not talking to him; that he was talking to others. All the others are now dead.
( This is a sample of the testimony that is offered to corroborate the claim of this plaintiff that B. F. gave her this land in controversy. Waiving any feeling of incredulity that might exist in the mind because of the long time intervening between the conversations and the testimony of these witnesses upon the stand, and waiving the irrelevancy of the statements claimed to be made by Runnels to any matters that might be of common interest between them, we have to say that the testimony is too uncertain, too vague, too indefinite, to be of any probative force upon the issue tendered here. There is no direct testimony, savoring of spontaneity, given by any of these witnesses, that he made special reference to this particular land. All the other land had been given, but deeds had been executed.
We hold, therefore, that the evidence does not establish a completed gift, or any transfer from B. F. to Janie that
Upon the whole record, we think the coúrt erred in its decree, and the cause is, therefore, reversed, with a direction to the court to enter a decree giving to this widow, Marion E. Eunnels, her distributive share in the land, as the property of her husband at the time of his decease.— Reversed.