Caldwell v. Melvedt

• Decision Date: 06 February 1895
• Parties: CALDWELL ET AL. v. MELVEDT. CALDWELL ET AL. v. TOW ET AL.
• Court: Iowa Supreme Court

93 Iowa 730

61 N.W. 1090

CALDWELL ET AL.

v.MELVEDT.

CALDWELL ET AL.

v.TOW ET AL.

Supreme Court of Iowa.

Feb. 6, 1895.

Appeals from district court, O'Brien county; F. R. Gaynor, Judge.

These are actions in equity to quiet in the plaintiffs the title to certain land in O'Brien county. The actions were heard by the district court and determined together, and decrees were rendered in favor of the defendants. The plaintiffs appeal. Affirmed.H. E. Long, for appellants.

H. H. Crow and E. C. Herrick, for appellees.

ROBINSON, J.

The questions involved in the two actions are the same, and they will be considered and determined together. The plaintiffs claim to be the owners in fee simple of sections numbered 2 and 3 in town-ship numbered 94, north of range numbered 41 W., by virtue of the will of Orville H. Browning, deceased, and that he acquired title thereto under a deed from one D. Edward Paullin. The defendants also claim title from Paullin, but under a deed from him later than his conveyance to Browning. It is admitted that Paullin executed to Browning an instrument in the form of a warranty deed, but the defendants claim it was given to secure the payment of money, and that it was in legal effect a mortgage, which has been satisfied and discharged by the payment of the debt it was designed to secure. They also claim title by virtue of a conveyance executed by Eliza H. Browning, the widow of Orville H. Browning, and a beneficiary of his will, and ask to have the title to the land quieted in them. The district court gave to them the relief they demanded.

The conveyance from Paullin to Browning was dated and acknowledged the 4th day of June, 1881. To prove that it was a mortgage, the defendants introduced the testimony of C. L. Wright and James F. Carrott. The testimony of each was objected to by the plaintiffs as incompetent under section 3643 of the Code. The testimony of Carrott was to the following effect: He is an attorney, and had officed with Browning and transacted business with him prior to his death. After his death his widow was appointed executrix of the will, and Carrott was employed by her to act as an attorney in the settlement of the estate. In the discharge of his duties he searched for the books and papers of the decedent, and found among them the deed from Paullin in question. It was in an envelope on which, in the handwriting of Browning, was the following: “D. Edward Paullin. Sec. 1 and 2, 94 N., 41 W. $3,500.00. To be reconveyed upon payment of the above sum, with ten per cent. interest, at any time after one month and within one year. Have given him a contract to the above effect, June 14, 1881.” The deed had not been recorded, but was sent by Carrott to O'Brien county, and there recorded in September, 1882. He also found among the books and papers of the decedent a note, dated June 14, 1881, made by Paullin to Browning for the sum of $3,500, with interest at 10 per cent. per annum, due one month after its date. In June, 1883, he sent the note to Joy & Wright, attorneys, of Sioux City, for collection. He also sent to them a quitclaim deed for the land in question, executed by Mrs. Browning in her own right and as executrix of the will of the decedent. The note was paid by Paullin, and the proceeds were remitted to Carrott and by him paid to the executrix, and the deed was delivered to Paullin. On cross-examination Carrott was asked by the plaintiffs to set out a copy of the books and papers of the decedent which referred to O'Brien county land, and in response he set out numerous entries from a book of the decedent, and among them one as follows: “1881, June 14, loaned to D. Edward Paullin $3,500.00.” The facts testified to by C. L. Wright are substantially as follows: He was a member of the firm of Joy & Wright when it received the note and deed from Carrott. His firm collected of Paullin a part of the amount due on the note in August, 1883, and the remainder in the next October, and remitted the proceeds to Carrott. At about the time the last payment was made, they delivered the deed executed by Mrs. Browning to Paullin. In what they did they acted as the attorneys of Mrs. Browning, or of the estate of which she was executrix.

Section 3643 of the Code is as follows: “No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination, shall be allowed in giving testimony to disclose any confidential communication properly entrusted to him in his professional capacity, and...