153 Iowa 187 | Iowa | 1910
Lead Opinion
Mrs. E. E. Scburz, widow, resided in Council Bluffs, and was the owner of tbe real property which is tbe subject of this litigation. Sbe bad three children, tbe plaintiff, Emil Scburz, and tbe defendants, W. H. Scburz and Lolita S. Mollring. Mrs. Scburz died September 12, 1908, and very soon thereafter a deed was placed of record purporting to have been made by her in her lifetime conveying the real estate to her daughter, Mrs. Mollring. Thereafter plaintiff began this action in equity alleging himself to be tbe owner of a one-third interest in tbe property and asked to have tbe same partitioned. To this action Mrs. Mollring and W. H. Scburz appeared and answered denying tbe averments of tbe petition, and tbe former by her separate cross-petition asserted ownership of tbe property in her own right and prayed that her title be quieted accordingly. [Replying to tbe cross-petition, plaintiff denies that tbe deed purporting to have been made by Mrs. Scburz to her daughter was ever delivered in tbe lifetime of tbe grantor, and therefore never became effective as a conveyance. He further alleges that at tbe time of tbe death of tbe mother and prior thereto sbe and her children labored and acted under a mistaken, understanding and belief that a deed made by her, though not delivered, would operate at her decease to vest tbe title in tbe daughter in trust for tbe use of all tbe children, that the deed in question was in fact made and executed with that intent and for that purpose, and that, still, actuated by that mistaken belief be (plaintiff), after bis mother’s death, consented to tbe recording of tbe deed and to tbe
There is much confusion in the record as to the proper sequence of dates of the various transactions involved in this litigation. For example, appellant’s abstract gives the date of the commencement of this action as April 22, 1910, while the decree purports to have been entered January 24, 1910. The petition alleges, and the fact is stipulated, that Mrs. Schurz died September 12, 1908, while appellant in his reply argument asserts that she died September 12, 1907, although it seems to be conceded that the deed to Mrs. Mollring was not made before December 12, 1907. In still another part of the abstract the same deed is described as bearing date September 12, 1908, and acknowledged on the 13th day of the same month. While these defects are not insurmountable obstacles to a proper consideration of this case, they do add very materially to the labor of this court in marshaling the facts and developing the merits of the dispute. We mention them here, not by way of rebuke, but to direct the attention of all counsel preparing cases for this court to the great importance of careful proof reading of the printed record. It is too often neglected, and not infrequently to the great prejudice of some of the parties in interest.
In the case at bar, the plaintiff claims, and offers evidence tending to show, that Mrs. Schurz became stricken with illness a short time prior to the date of the deed, and, in view of her condition, the two sons talked over property matters and agreed it would be advisable to have their mother ■ transfer the title to Mrs. Mollring for the joint use and benefit of herself and her brothers. 'This, plaintiff says, was communicated to his mother by himself and W. IT. Schurz, and she consented thereto on condition that the transaction be kept secret and she be left in full control of the property while she lived. Plaintiff himself drew the deed, and after it had been executed and acknowledged he says he took it to his mother, and at her direction placed it in a small box where she kept her papers. According to his story, the deed remained at all times in • the possession of his mother until her death and was never given over to Mrs. Mollring nor any other person for delivery to her. On the other hand, W. H. Schurz testifies that at or about the time the deed was executed his mother placed it in his hands to keep for his sister. He further testifies that he kept the paper for some months in his office, when, his mother expressing some fear as to its safety there, he took it to her place of residence and placed ■ it in an iron box belonging “ to her, locked the box, and himself kept and carried the key thereto until after her death, when he delivered the instrument to his sister. The key, he says, was given him by his mother with the injunction to take due care that if anything happened to her the deed should be given to his sister. If W. H. Schurz tells the truth with respect to this transaction, there was a sufficient delivery of the deed; but, if the version given by the plaintiff be correct, then there was no delivery. A similar question of veracity is raised between plaintiff and Mrs.
( We conclude that the decree of the district court must be affirmed.
Rehearing
ON EEHEAEING.
Monday, December 18, 1911.
Upon a reexamination of the record jn the light of additional arguments, we discover no reason for departing from the views expressed in the opinion heretofore filed.
Adhering thereto, the decree of the district court is affirmed.