Augustine v. Schmitz

• Decision Date: 08 February 1910
• Citation: 145 Iowa 591,124 N.W. 607
• Parties: AUGUSTINE v. SCHMITZ ET AL.
• Court: Iowa Supreme Court

145 Iowa 591

124 N.W. 607

AUGUSTINE

v.SCHMITZ ET AL.

Supreme Court of Iowa.

Feb. 8, 1910.

Appeal from District Court, Keokuk County; W. G. Clements, Judge.

Action to quiet title to a lot in the town of What Cheer, of which plaintiff claims to be the owner. The defendant in answer and cross-petition claims ownership in himself, and asks that the title be quieted in him. There was a decree for plaintiff, and defendant appeals. Reversed.J. M. Whitaker, for appellant.

C. C. Carter and H. F. Wagner, for appellee.

WEAVER, J.

The controversy in this case is as follows: On April 29, 1907, plaintiff, being the owner of the lot in question, exchanged it with one J. B. Pope for land in Missouri and conveyances were delivered accordingly; the deed by plaintiff being in the warranty form. It is the claim of the appellant Schmitz that this deed was made and delivered to Pope in blank as to the name of the grantee, thus making the same effectual to vest title in any person whose name should thereafter be inserted in the blank by the person receiving it or by any subsequent holder. Hall v. Kary, 133 Iowa, 468, 110 N. W. 930, 119 Am. St. Rep. 639. Later in the same month Pope traded the lot to one Odett, who swears that in consummation of such trade Pope then delivered to him the same deed which plaintiff had delivered to Pope a few days before, and that the blank therein for the name of the grantee had not yet been filled. About the 1st of June, 1907, Odett traded the lot to the appellant Albert Schmitz, and that he then filled out said deed with the name of Schmitz as grantee, and delivered it to him in that condition. On September 18, 1907, plaintiff began action in the district court against J. B. Pope to rescind the exchange of property first above mentioned, and to cancel and set aside the deed delivered to Pope for the lot in What Cheer, alleging as ground therefor the fraud and misrepresentation of Pope with reference to the property in Missouri. No other person or persons than Pope and wife were made defendants. On December 17, 1907, Pope having made default, a decree was entered declaring the deed given to him by plaintiff void and of no effect, and quieting title in the latter. During the period covered by this narration, there was no one in actual occupancy of the lot, and the deed which Schmitz received from Odett was not recorded until October 4, 1907. On October 17, 1907, the present action was begun against Schmitz to quiet plaintiff's title, and decree granting him the relief prayed for was entered April 24, 1908, and it is from this latter decree that the present appeal has been taken. These two actions, the one to set aside the deed and quiet title against Pope and the one at bar to quiet title against Schmitz, were never united or consolidated in any manner, nor was the decree obtained against Pope pleaded as an adjudication or estoppel affecting the rights of the parties. The one and only ground alleged for the relief demanded against Schmitz was that he, Schmitz, was claiming to hold title under a deed made to him by the plaintiff when in fact plaintiff never made, executed, or delivered such deed, and that the instrument purporting to be so made, and upon which Schmitz was asserting title, was forged, false and fraudulent. The theory and claim on which this charge is made is that the deed when delivered by plaintiff to Pope was duly filled out with the name, “J. B. Pope,” written therein as grantee, and that this instrument had subsequently been changed without the grantor's authority or consent by erasing the name of Pope as grantee, and substituting therefor the name of Albert Schmitz. No charge is made or proof offered that Schmitz was in any manner a party to the fraud by which plaintiff was induced to make the exchange with Pope, or that he took the deed from Odett with any actual notice or knowledge of such fraud.

The plaintiff as a witness in his own behalf swears that he himself wrote the deed for the lot to Pope, and that the name of the latter was written therein as grantee, and the name Albert Schmitz has at some time since been written therein without his authority. The instrument itself was put in evidence, and has been certified to this court. It is written upon a blank form in common use, the material part of which is as follows (the blanks being numbered by us for convenience of reference):

“Know all men by these presents that we (1) ...... of (2) ...... county, state of (3) ......, in consideration of the sum of (4) ...... dollars in hand paid by (5) ......, of (6) ......, do hereby sell and convey unto the said (7) ...... the following described premises: (8) ...... And we hereby covenant...