Deere, Wells & Co. v. Nelson

• Court: Iowa Supreme Court
• Writing for the Court: ADAMS, CH. J.
• Citation: Deere, Wells & Co. v. Nelson, 34 N.W. 809, 73 Iowa 186 (Iowa 1887)
• Decision Date: 26 October 1887
• Parties: DEERE, WELLS & CO. v. NELSON ET AL

34 N.W. 809

73 Iowa 186

DEERE, WELLS & CO. v. NELSON ET AL

Supreme Court of Iowa, Des Moines

October 26, 1887

Appeal from Audubon District Court.

ACTION in equity for a decree declaring a certain attachment lien paramount to a deed. There was a decree for the plaintiffs and the defendants appeal.

AFFIRMED.

Griggs & Brainard and H. W. Hanna, for appellants.

Smith Carson & Harl, for appellees.

OPINION

ADAMS, CH. J.

The plaintiffs are creditors of the defendant L. H. Nelson, and as such they caused an attachment to be levied upon 320 acres of land in Audubon county. The defendant James Nelson claims to be the owner of the land by purchase and conveyance from the defendant L. H. Nelson prior to the levy of the attachment. The plaintiffs deny that the purchase and conveyance were made prior to the levy of the attachment, but claim that it was made several days later. It is not denied that a deed of the land was executed by L. H. to James Nelson and filed for record prior to the attachment; but they aver that the deed was not delivered until several days after the attachment. The facts appear to be that the defendant James Nelson is the father of L. H. Nelson, and resides in Vermont; that some time prior to the execution of the deed there had been some conversation between them in regard to a sale of the land by L. H. Nelson to his father for $ 8,500, a part of the purchase-money to be paid by the surrender of a promissory note held by the father against his son, and that the conversation resulted in L. H. Nelson giving the father what he called the refusal of the land. On this point both L. H. Nelson and his father were examined as witnesses, and they substantially agree. The testimony of James Nelson is in these words: "In January, 1883, we wrote to L. H. Nelson to know if he wished to sell his place. He answered that he did not then, but, when he did sell, would let me have it. In July of the same year he was at home, (in Vermont.) I asked him what he wanted for his place. He said he had been offered $ 8,000 and some land in Nebraska, and he called the offer as good as $ 8,500. I asked him if he would give me the refusal when he sold, and he said he would. The deed I received was in accordance with said conversation."

We have set out with some explicitness the testimony of James Nelson because he is the party claiming under the deed, and it must be determined from the facts as above detailed when the deed could be considered as delivered. It does not appear that any communication passed between L. H. Nelson and his father relative to the land after the conversation in Vermont in July, until the deed had been executed and recorded and sent by mail to Vermont, in November, where it was received several days after the attachment. The filing of the deed for record could not be considered as a delivery, unless it was filed in pursuance of a previous agreement. (Day v. Griffith, 15 Iowa 104; Cobb v. Chase, 54 Iowa 253, 6 N.W. 300.) The defendant James Nelson relies upon the conversation which occurred in Vermont, in July, as constituting such agreement; but it seems to us very clear that no agreement for the purchase was consummated at that time. The most that can be said is that L. H. Nelson agreed to give his father the preference as a purchaser; that is, the right to purchase in preference to any one else if he should see fit; or, taking what was said in a more literal...