Crecelius v. Smith

• Decision Date: 14 January 1964
• Docket Number: No. 51192,51192
• Citation: 255 Iowa 1249,125 N.W.2d 786
• Parties: B. G. CRECELIUS et al., for themselves and all other persons composing that class of persons who are beneficiaries, or their successors, under the Last Will and Testament of Samuel Coleman Zieger, and Rhea Hensley, Harvey E. Trimble, Jack Trimble and John J. Johnson, as member of the aforesaid class, and C. O. Rubow, Administrator De Bonis Non With the Will Annexed of Samuel Coleman Zieger, Deceased, Plaintiffs-Appellants, v. Jack SMITH, Defendant-Appellee, and Edna Schwebke, Plaintiff-Appellee.
• Court: Iowa Supreme Court

Page 786

125 N.W.2d 786

255 Iowa 1249

B. G. CRECELIUS et al., for themselves and all other persons composing that class of persons who are beneficiaries, or their successors, under the Last Will and Testament of Samuel Coleman Zieger, and Rhea Hensley, Harvey E. Trimble, Jack Trimble and John J. Johnson, as member of the aforesaid class, and C. O. Rubow, Administrator De Bonis Non With the Will Annexed of Samuel Coleman Zieger, Deceased, Plaintiffs-Appellants, v. Jack SMITH, Defendant-Appellee and Edna Schwebke, Plaintiff-Appellee.

No. 51192.

Supreme Court of Iowa.

Jan. 14, 1964.

Lundy, Butler & Wilson, Eldora, for plaintiff-appellants.

Bateson, Ryan & Dunn, Eldora, and Mickelson & Roan, Toledo, for defendant-appellee.

THOMPSON, Justice.

This appeal requires us to determine difficult questions which revolve around two conveyances of real estate by Samuel Coleman Zieger, who died in 1919. There are collateral issues, but the major contentions center upon a proper construction of the intent of the grantor in executing the deeds. No question of proper delivery is involved. The plaintiffs brought their action to quiet title to the two 80 acre tracts of farm lands described in the deeds, and asking an accounting of rents. The defendant answered, denying plaintiffs' claims, and counter-petitioning for a decree quieting title in himself. The trial court entered its decree and judgment for the defendant, and the plaintiffs appeal.

In 1895 Zieger deeded to his niece, Lillian Augusta Hoover, referred to hereafter as Lillian Hoover, eighty acres of land in Hardin County; and again in 1903, another eighty acre tract. It is the present ownership of these lands which is involved in this litigation. The major question is the proper construction of the deeds--which is to say we must gather from them the intent of the grantor. So we set out the deeds, omitting the description of the lands. The 1895 deed reads thus:

'KNOW ALL MEN BY THESE PRESENTS:

'That I, Samuel C. Zieger, an unmarried man of Hardin County, State of Iowa, in consideration of the sum of Four Thousand DOLLARS in hand paid, do hereby SELL AND CONVEY unto Miss Lillian Augusta Hoover of Hardin County, State of Iowa, the following described premises, situated in the County of Hardin and State of Iowa, to-wit: (description.)

'The condition of this deed is that the said Lillian Augusta Hoover is not to sell or convey the said land and neither has she any power or right to mortgage or encumber the said property in any way--if she violate the above provisions the said property shall revert to the Estate of Samuel C. Zieger (the grantor) But she may lease or rent the same and devise the same in her Will and I do hereby covenant with the said Lillian Augusta Hoover that I am lawfully seized, in fee simple of said premises, that they are FREE FROM INCUMBRANCE, that I have good right and lawful authority to sell the same, and I do hereby covenant to WARRANT AND DEFEND the said premises and appurtenances thereto belonging against the lawful claim of all persons whomsoever; and the said unmarried hereby relinquishes all her right of dower in and to the above described premises.'

The 1903 deed is much the same, with one variation which is of importance. We set it out:

'KNOW ALL MEN BY THESE PRESENTS:

'That I, Samuel C. Zieger, an unmarried man of Hardin County, and State of Iowa, in consideration of Four Thousand DOLLARS, in hand paid by Miss Lillian Augusta Hoover of Hardin County, and State of Iowa, do hereby SELL AND CONVEY unto the said Miss Lillian Augusta Hoover and to his heirs and assigns, the following described premises, to-wit: (description.)

'The condition of this deed is that the said Lillian Augusta Hoover is not to sell or convey the said land and neither has she any power or authority or right to mortgage or encumber the said property in any way. If she violate the above provisions of this deed to the said property then the said property shall revert to the Estate of Samuel C. Zieger, the grantor. But she may lease or rent the same and devise the same in her Will to any one she may choose forever, and I do hereby covenant with the said Miss Lillian Augusta Hoover that I am lawfully seized, of said premises; that they are FREE FROM INCUMBRANCE; * * * that I have good right and lawful authority to sell the same; and I do hereby covenant to WARRANT AND DEFEND said premises, and the appurtenances against the lawful claims of all persons whomsoever * * * and the said unmarried hereby relinquishes all h--right of dower in and to the foregoing premises.'

Mr. Zieger was born in 1850 and never married. Lillian Hoover was born in 1872, and from about 1889 until the time of Mr. Zieger's death she lived with him and attended to the housekeeping duties. Zieger had two sisters, and the individual plaintiffs here are their descendants and beneficiaries under his will or descendants and heirs of such beneficiaries. He did not specifically devise the two 80 acre tracts in controversy, but left specific and residuary bequests and devises. The plaintiff C. O. Rubow is the administrator de bonis non of his will, and Edna Schwebke, named as an appellee, is simply one of the plaintiffs who did not elect to join in the appeal.

In 1935 Lillian Hoover was married to the defendant, Jack Smith and lived with him until her death in 1958. It is not claimed that she violated the provisions of the deeds against conveyancing or encumbering. She rented the lands, made some improvements, and was in possession at the time of her death. She left a will which, after requiring payment of her debts, said: 'Paragraph 2. Subject to the foregoing, I devise and bequeath all of my property of every nature and description, to my husband, Jack Smith, and to his heirs and assigns forever.' The defendant claims under this will; the plaintiffs say Lillian Hoover received only a life estate through the deeds set out above, and so had nothing to leave so far as the two 80 acre parcels are concerned. Also, if the provisions in the deeds giving her the power of disposal were powers of appointment, she did not exercise them.

I. The most important question in this litigation, as we view it, is the proper determination of the intent of the grantor, Samuel Coleman Zieger, as shown by the language used; which is to say, the correct construction of the deeds.

We turn first to some statutory provisions which have a direct bearing on the issue at this point. Most important is section 557.3, Code of 1962, I.C.A., which has been a part of our law since 1851. We quote: 'Every conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.'

Section 557.2 has a bearing on the 1895 deed, since it does not include the word 'heirs' in the granting clause. We quote: 'The term 'heirs' or other technical words of inheritance are not necessary to create and convey an estate in fee simple.' It is also of some importance that the deeds in question are substantially in the form provided by section 558.19 for a deed in fee with warranty.

Precedents are usually not of great value in construing deeds such as these. Each must be read, and the grantor's intent determined, from the instrument itself. But there are certain rules of law which become applicable. The entire instrument must be considered and the intent of the grantor determined as made manifest therein. Schenck v. Schenck, 242 Iowa 1289, 1291, 50 N.W.2d 33, 34.

These matters all tend to show an intent to grant a fee title. But there are other considerations; and when the entire instruments are studied, the problem becomes a most difficult one. Samuel Coleman Zieger is long dead, and can speak only through the deeds he executed, with some, but very little, light thrown on his meaning by extraneous evidence. Lillian Hoover is also gone; but she was a party to the conveyances, and we must assume she knew what the grantor had in mind. We shall refer to this evidence later. We shall first discuss the 1903 deed.

II. The two deeds do not seem materially at variance. The conclusion seems plausible that the intention of the grantor was the same in each. However, the second deed, executed in 1903, contains words not found in the first. These words are 'his heirs and assigns'...