| Iowa | Mar 17, 1921
Plaintiff alleges in his petition that, about the time he attained his majority, Martin Delaney promised him that, if he would remain and work for him as he had in the past, he would give him 80 acres of land; that he did continue to reside with and work for said Martin Delaney until he was 26 years of age; that, in the year 1911, by mutual agreement and arrangement with the said Martin Delaney, he went into possession of the above-described tract; and that he has continued in such possession, under a claim of ownership, and has expended such sums as he was able in improving the same. He further alleges that the deed executed March 5, 1917, conveying the southwest quarter of the northwest quarter of said tract to Joseph M. and Edward Delaney was obtained by fraud and duress, and asked that same be canceled and set aside, and that title to the entire tract be confirmed and quieted in him.
The defendants, for answer, admit the execution of the deed, but deny that it was obtained by fraud or duress, and further admit that Joseph M. and Edward Delaney claim to be the owners of said 40-acre tract. The court below dismissed plaintiff’s petition, and entered judgment against plaintiff for costs. Notice of plaintiff's appeal was served upon Joseph M. and Edward Delaney only. The other defendants, who were not served with notice of appeal, were Frank R. Delaney, brother of Edward and Joseph M., and William Miller, who, it is alleged, asserts a right to the possession of the 80 as lessee. The record con
“I, Martin Delaney, of Stanton Township, Plymouth County, Iowa, hereby declare the following to be my last will and testament concerning the matters hereinafter mentioned.
“First. It is my will, and the purposes of this declaration, to assist Fred Shepherd in perfecting his title to the west half of the northwest quarter of Section Thirty-six, Township No. Ninety-one, North Range Forty-five, West of the 5th P. M. in Plymouth County, Iowa, the same beiñg land occupied by the said Fred Shepherd, who was given possession by me, at which time I was the owner of the same, with the understanding that he was to have and take title to the same, free of all incum-brance, immediately after my death. The consideration being that the said Fred Shepherd worked for me from the time he was ten years old until he was about twenty-six' years old, with•out wages except the promise that he should have this land at my death.
“Second. Recently, and while I was sick in the hospital at LeMars, Iowa, at the request of my sons I was induced to convey to them certain of my land in Plymouth County, Iowa, and have since been informed that the deeds then signed by me conveying to my sons, included the above-described real property, or a portion of it. I now state and declare that it was not my intention to convey any of the land above described to my said sons; and that it is my wish and desire that if my sons hold deeds of any of the above-described real property that they convey it, immediately after my death, to the said Fred Shepherd.
“Third. This statement is made in the hope that it may avoid litigation concerning the land above described, and that my wishes may be carried out in accordance with my agreement with the said Fred Shepherd, as above mentioned.”
Defendants objected to the offer of this instrument in evidence, upon the grounds that it was incompetent, immaterial, and irrelevant. This document contains the solemn admission
Counsel for appellees have discussed the questions involved herein upon the theory that plaintiff is claiming the land solely as a gift from Martin Delaney. The contrary is true. He is claiming it as compensation for services rendered under an agreement with Martin Delaney that he was to have 80 acres of land, if he remained with him. Plaintiff ceased to work for Martin when he went into possession of the land. According to the admission contained in the written instrument offered in evidence, his services were then completed. No attempt was made by defendants to impeach the written instrument, or to show that sagie was not voluntarily executed by Martin Delaney, or that the matters therein recited are not, in fact, true. Plaintiff, by this arrangement, became the equitable owner of the 80-acre tract. The admissions and declarations of Martin Delaney were binding upon him, and likewise upon his heirs. Johnson v. Petersen, 101 Neb. 504" court="Neb." date_filed="1917-07-10" href="https://app.midpage.ai/document/johnson-v-petersen-6662768?utm_source=webapp" opinion_id="6662768">101 Neb. 504 (163 N. W. 869). But proof of plaintiff’s claim to the land does not depend alone upon the admissions and declarations of Martin Delaney.
To numerous persons who were called as witnesses and testified in plaintiff’s behalf, Martin Delaney often spoke in praise of plaintiff, of his services, and stated that he intended to give him 80 acres of land. To at least one of these witnesses he said that he had executed a will for that purpose. To another he said that he was going to purchase 80 acres of land for Fred. The tract in controversy was purchased in 1915, and was generally referred to as Fred’s 80. None of this testimony is disputed, nor was any evidence offered to offset it. We are of the
“The earth has been described as that nniYersal manuscript, open to the eyes of all. When, therefore, a man proposes to buy or deal with realty, his first duty is to read this public manuscript: that is, to look and see who is there upon it, and what are his rights there.”
It is not enough to justify the court in setting asicke the conveyance to the defendants for plaintiff to show merely that they knew of his possession, and could easily have ascertained by inquiry that he was asserting title to the land. It was, under the allegations of his petition, incumbent upon him to prove by competent proof that he went into and retained possession of the land under an arrangement or agreement with Martin Delaney by which title was to vest in him absolutely upon the death of Martin Delaney. Aside from his written admissions and declarations, the evidence went no further than to show that Martin Delaney had frequently expressed appreciation of plaintiff’s services, and declared his intention to give him 80 acres of land. There is no other competent proof that plaintiff’s possession was not that of a tenant. It is true that he improved the land in some small particulars, but during all of the time, he was paying rent therefor. We need not set out the evidence in detail. We have read the whole record with care, notwithstanding the fact that counsel for appellant have utterly ignored the rules, and set out the testimony in full by questions and answers. We are persuaded that plaintiff has not shown sufficient facts, independent of the written instrument, to justify the cancellation of the deed of March 7, 1917, to the defendants. Defendants offered another instrument in evidence, in form, and purporting to be, the last will of Martin Delaney, and purporting to have been executed by him on October 10, 1917. This document, which is witnessed by T. M. Zink, J. T. Keenan, and Ida Nugent, bequeaths the northwest quarter of the northwest quarter of Section 36, Township 91, Range 45, to plaintiff. It also appears from the record that objections have been filed by Frank Delaney to the admission of this instrument to probate. We are not called upon, at this time, to construe the written instrument, or to determine whether same may be given effect as
It follows from what has already been said that a decree should have been entered in favor of plaintiff confirming title in him to the northwest quarter of the northwest quarter of Section 36, Township 91, Range 45, and quieting same as against the defendants Joseph M. and Edward Delaney, and this cause will be reversed and remanded to the court below, with directions that a decree be entered in harmony herewith; otherwise, the judgment of the court below is affirmed. — Affirmed in part; reversed in pa/rt.