171 Iowa 697 | Iowa | 1915
"We do not wish to criticise too harshly; but under such circumstances, we much prefer that counsel should not testify as a witness unless it is necessary, and that they should then withdraw from the active management of the case. It is human nature for attorneys to be intensely interested in the result of their client’s case.
As bearing upon this point, we may state that appellants’ abstract contains 74 pages and there is an additional abstract of 65 pages. Substantially every page of the abstract is corrected, and there is no denial of appellee’s abstract. The entire deposition of one material witness is omitted from the abstract. The argument for appellants is made without regard to the corrections in the additional abstract.
By direction of the three devisees, Mr. Howard prepared a deed of conveyance, absolute in form, to an undivided one-sixth of the real estate of which deceased died seized, but as to the lot in town, — the' homestead, — subject to a life estate. This deed contains this provision: “and, whereas, it is the desire of the said Frank Earl Townsend, Ross M. Townsend, and Elda Townsend, that their brother, Harry Elmer Stickles, should own a part of the real estate belonging to said estate, and that he should receive an equal share therein with the said legatees under said will . . . this conveyance of said one-sixth interest is made to the said Harry Elmer Stickles for the purpose of making him an equal owner with the grantors in the undivided two-thirds of said real property that is left to the grantors under said last will and testament of the said Reece Townsend, and for no other purpose. ’ ’ This deed bears date July 10, 1906, and was signed by all the grantors named and was duly acknowledged July 14, 1906. At the same time, an undivided one-sixth interest in the personal estate was assigned by the same parties and a life lease from the three children and devisees before named was executed for the homestead, which contains the following recital, among others: “And it is further agreed that in consideration of this life lease to our said mother that said home shall remain
“Mr. Howard, I suppose my brothers and sister have signed those papers and it was so good of them and I wish to ask you if those papers are binding or could it be taken away again should anything happen. I write you as I am very much interested. I would like you to let me know of anything that concerns me and if possible send me a copy of the papers they signed. I would not like for you to speak of this part of the letter as they might think I was a little hasty, but you know it was to my interest.”
Plaintiff claims that he received the original deed in controversy and the assignment of the personal estate and that
‘11 enclose you herewith the papers signed by your brothers and sister, conveying to you an equal share of the estate belonging to your father, Reece Townsend. This makes you an equal owner with the others, in the estate, after the will is probated, and then the deed should be recorded. I send you these that you may know what has been done and they are now irrevocable, and you will be an equal owner with them as soon as the will is probated. You had better return them to me to keep until the proper time, and I will then have the deed recorded for you, and have the executor accept notice of the other.”
Mr. Howard denies sending such a letter and denies that he sent the original deed and assignment, but says that he sent ' only copies of the instruments and produces what he claims is a copy of the letter he did write. There is a serious conflict in the evidence as to whether Mr. Howard did send a letter of July 25, 1906, as claimed by plaintiff. It is referred to in the record as Exhibit A, and the contention of plaintiff is that the original of such letter was attached to his first deposition, taken in Denver, Colorado, and marked Exhibit A.
August 19, 1906, plaintiff wrote Mr. Howard from Denver, as follows:
“Mr. Art Howard, Dear Sir: I wish to thank you very much for sending me those papers and also for the good work you have did for me and I will return them at once. I should have sent them to you before this, but I have been so busy and have neglected to do so. You will have them recorded and attend to my part of the^business and what expense there is attached I will gladly settle. I know that you will see that everything is done according to law. It was very good of my brothers and sister to remember me as they have and I am very thankful for it. You will find those papers*703 and keep me posted. Respectfully, your friend, Harry E. Stickles. ’ ’
This letter is marked Exhibit EE. Mr. Howard as a witness says: “This letter ‘EE’ came back with these papers when he returned them to me.” But, as stated, Mr. Howard claims that these were copies of the deed and assignment, while plaintiff claims they were the originals, and that, after he had himself made a copy, he returned the originals to Howard for recording.
Plaintiff testifies as a witness:
“I accepted this deed when received through the mails as a conveyance of the property it purported to convey. I thought I owned this property for two years after I received the deed. I never told A. D. Howard to withhold the deed from record. I would have sent the deed to the recorder’s office myself and had it recorded if it hadn’t been for Howard requesting me to send the deed to him and he would record it.”
Going back to the question as to whether there was an Exhibit A, a letter from Howard to Stickles, dated July 25, 1906. The deposition of Stickles, to which the original letter marked Exhibit A was attached, was filed in the clerk’s office about one P. M., November 8, 1912. Notices were sent of the filing, and Mr. Howard went to the clerk’s office about one P. M., November 9th, and made an explanation of the deposition with the clerk when it was found that the letter referred to in the evidence as Exhibit A was missing. Thereafter, considerable testimony was taken as to the letter. As stated, defendants deny that such a letter was sent; but it is the claim of defendants that, if such a letter existed and was attached to the deposition, it was removed before it was sent from Denver.
Mr. Howard testifies that he did not remove the exhibit from the deposition and that it would have been impossible
Simonson, the notary, describes the letter and says he identified it by marking it Exhibit*A and attached it to the deposition of Stickles and that it was forwarded by him to the clerk at Jefferson, Iowa.
Miss Wells testifies that, at the time the depositions were prepared, she made a copy of this letter for Mr. Spangler, one of plaintiff’s attorneys; that the last she saw of the letter was when it was attached to the deposition of Mr. Stickles.
Spangler describes the letter, says he had it in his possession and had Miss Wells make a copy of it and that he compared the copy with the original; that he attached the copy to his deposition; says he last saw the original of the letter in the
Witness Ross testified that he lived at Denver, but formerly at Jefferson; had known A. D. Howard twenty-eight or thirty years and was familiar with his handwriting; saw the letter purporting to be from him to Stickles, dated July 25, 1906, on several occasions; that he was employed by plaintiff as attorney in this matter and as such attorney had the latter in his possession; that he corresponded with Howard in regard to the matter in controversy.
The clerk of court testified that when he received the package of depositions, the package was not broken.
Miss Stevenson, clerk in the office of the clerk of courts, testifies that when the package of depositions arrived she laid them on the clerk’s table; that the clerk went home to do some work and that she took care of the deposition and sent notices to the attorneys; that she' was in the office until five o’clock that afternoon, and between one o’clock and five, she looked ■ through the first deposition and that she then saw the paper marked Exhibit A; that she was familiar with the signature of A. D. Howard and his signature was attached to the paper which she says was marked Exhibit A.
Plaintiff testifies that he was acquainted with the signatures of his two half brothers and his half sister, and that the signatures to the deed and assignment sent to him in Exhibit A were their genuine signatures and that the signature of the notary to the acknowledgment thereto was the genuine signature of Mr. Howard.
Plaintiff’s wife testifies that she saw such instruments in her husband’s possession in Denver; that a copy was made and she helped proofread the copy; that a certificate purporting to be signed by A. D. Howard and his notarial seal were affixed to such deed; and that the signatures to said documents were those of Ross, Elda, and Frank, the grantors; that she knows her husband mailed the deed and other document back to A. D. Howard.
Some of the circumstances already mentioned bear upon this proposition and we shall briefly mention some of the others. All concede that before the deed was executed there was talk of making out papers so that plaintiff should share equally with the defendants, though they now say it was upon certain conditions; it is shown that there was affection between plaintiff and defendants; the deed itself expresses the purpose and intention that plaintiff should share equally, and, as before stated, is entirely silent as to the present claim of defendants that there was a parol understanding that this should be upon condition that plaintiff should straighten up. At least two of the heirs as witnesses testified that they did not order Mr. Howard not to deliver the deed to plaintiff; they attempt to qualify this upon further examination by their counsel and in response to leading questions, but their attempted explanation or qualification is not entirely satisfac
We have not set out the testimony bearing upon this point and do not deem it necessary to do so, in view of our conclusion on the other points.
We are of opinion that the decree of the district court was right and it is therefore — Affirmed.