Dolph v. Wortman
| Decision Date | 27 June 1918 |
| Docket Number | 32123 |
| Citation | 168 N.W. 252,185 Iowa 630 |
| Parties | SENA G. DOLPH, Appellee, v. AMANDA WORTMAN et al., Appellants; MARTICIA V. DOLPH, Intervener |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 12, 1919.
Appeal from Mills District Court.--O. D. WHEELER, Judge.
SUIT in partition of lands in the name of A. H. Dolph at the time of his death. By way of cross-petition and petition of intervention, the widow and children of J. H. Dolph alleged that 954 acres of the land had been conveyed to J. H. Dolph and prayed that title thereto be quieted in them. The plaintiff, as widow of A. H. Dolph, alleged that, if J. H Dolph acquired said land, this was in fraud of her marital rights. These allegations were put in issue; and, on hearing the court found that the 954 acres of land were conveyed to J. H. Dolph before the intermarriage of A. H. Dolph and plaintiff, and that this was in fraud of plaintiff's marital rights; and decreed that the plaintiff was entitled to an undivided one half of said land, and the widow and children of J. H. Dolph to the other half. All parties other than plaintiff appeal.
Reversed.
Genung & Genung, Tinley, Mitchell, Pryor & Ross, and John Y. Stone, for appellants.
C. E. Dean, Genung & Genung, and Tinley, Mitchell, Pryor & Ross, for appellee.
I.
A. H. Dolph, known herein as Henry, died January 18, 1916, intestate, seized of about 2,000 acres of land, leaving a widow, plaintiff herein, and no descendants. His first wife, to whom he was married in 1857, died in June, 1894, and he was married to plaintiff, a widow, with three children, June 17, 1896. Her right to one half of all the above land except 954 acres is not questioned, nor is the right of defendants and cross-petitioners to share therein, or their respective portions. But it is alleged by cross-petitioners that, on August 28, 1895, Henry made and delivered to his brother, J. H. Dolph, known herein as Hiram, a warranty deed of:
"All of Section 8 and the Northeast Quarter and the North Half of Southeast Quarter of Section 7, and the East Half of the Northwest Quarter of said Section 7 except a small lot of about 6 acres in the northwest corner of said East Half of the Northwest Quarter of Section 7, all in Township 71, Range 40, in Mills County, Iowa, being all the land described in the petition as being in said Sections 7 and 8 except the Southwest Quarter of said Section 7."
Hiram departed this life, July 8, 1914, leaving a widow, Marticia V. Dolph, sister of Henry's first wife. She, by petition of intervention, joined the cross-petitioners, who are her children by Hiram, in praying that the petition be dismissed as to above-described land, and the title to an undivided one third of said land be quieted in intervener, and to an undivided two thirds thereof in cross-petitioners. For convenience, these parties may be referred to as cross-petitioners.
A sister of Henry's, and nephews and nieces and children of deceased nephews and nieces, are defendants; and they, with plaintiff, put in issue the allegations of the cross-petition; and, in addition thereto, plaintiff alleged that the deed from Henry to Hiram, if executed, was in fraud of her marital rights, subsequently acquired, and ought not to bar her claim to share, to the extent of an undivided half of the land alleged to have been conveyed, as widow of Henry. The alleged deed was not produced at the trial, but was found by the court to have been executed, and to have been in fraud of plaintiff's marital rights; and on July 3, 1914, she was decreed to be entitled to an undivided one half thereof, and cross-petitioners, being the wife and children of J. H. Dolph, to the remaining one half. The defendants and the cross-petitioners appealed.
After defendants had filed their abstract, on December 22, 1917, the several parties stipulated that the deed bearing date August 28, 1895, attached to the stipulation, was the original deed referred to in the evidence on the trial; that plaintiff, in the fore part of August, 1916, gave some of the old wearing apparel which had been worn by Henry to her sister, Mrs. Byers, for the use of her husband; that Mrs. Byers took such apparel to her home in Kansas, and, at some time in the fall, found the deed in an envelope in one of the vest pockets of said apparel, and thereupon notified plaintiff's son, and later delivered the deed to him, and he to plaintiff; and that the deed, with the envelope, might be mailed to the Supreme Court of Iowa, and should be treated by the court as in evidence, and the deed as the original deed, and might be used and inspected by the Supreme Court in the determination of the appeal, with the understanding that this stipulation as to the discovery of this deed would be made a part of the record.
II. The deed described "all of Section eight (8) in Township No. seventy-one (71), Range No. forty-two (42), west 5th P. M." Henry Dolph owned no land in that range, but he did own Section 8 in the township of the same number in Range 40, or 12 miles east of that described. The deed is alleged by cross-petitioners to have been voluntary, and a gift, and the evidence leaves no doubt that the only consideration was love and affection.
The deed, then, even though delivered, did not convey the section of land which Henry Dolph owned in Range 40, and the gift of that section was not completed in his life-time.
Tucker v. Tucker, 138 Iowa 344, 116 N.W. 119.
See In re Estate of Elliott, 159 Iowa 107, 140 N.W. 200.
"Where something remains to be done in carrying out the donor's intent, no matter how unequivocal the intent itself may be, the gift is not complete; for, so long as the contemplated action is not taken, it is to be presumed that the donor intends to retain the title." Abegg v. Hirst, 144 Iowa 196, 122 N.W. 838.
Though what was said in these cases related to personal property, the principle that the gift must have been completed is quite as applicable in the case of realty. If the delivery of the deed were conceded, it did not convey Section 8; for, even though the grantor intended so to do, he did not carry out that intention.
Cross-petitioners argue that plaintiff and defendants are estopped from arguing that the description in the deed is not in accord with the oral evidence. A sufficient response is that a plea of estoppel is not to be found in the issues raised by the pleadings. Moreover, no prejudice upon which to rest such a plea appears to have been suffered. One cannot well be said to have been prejudiced in the discovery of the truth with respect to an alleged gift, by ascertaining that the donee did not obtain as much as was first thought
Again, it is argued that whether the deed, if delivered, conveyed less than the 954 acres claimed by the cross-petitioners, was not put in issue. The replies of defendants and plaintiff deny the allegations of the cross-petition, and also specifically deny that any such deed as alleged was ever made or delivered. Plainly enough, then, the issue as to the execution of a deed such as pleaded was definitely raised. The introduction of the deed itself in evidence definitely settled this issue, and proved beyond question that a deed was made, but with description different from that testified to by the several witnesses speaking on that subject.
"It is well settled that courts of equity will not assist the grantee in an imperfect conveyance which is not supported by either a valuable or meritorious consideration against either the grantor or his representatives." Else v. Kennedy, 67 Iowa 376, 25 N.W. 290.
The principle is concisely stated in Enos v. Stewart, 138 Cal. 112 (70 P. 1005):
See Lister v. Hodgson, L. R. 4 Eq. Cas. 30; Shears v. Westover, 110 Mich. 505 (68 N.W. 266); Willey v. Hodge, 104 Wis. 81 (80 N.W. 75); Henry v. Henry, 215 Ill. 205 (74 N.E. 126); Mulock v. Mulock, 31 N.J.Eq. 594; Thornton on Gifts, Section 363. This does not infringe on the rule permitting identification of what is really devised, in case of a will.
Counsel argues that there was a sufficient consideration, in the affection of these brothers. For 30 years, they had lived about 80 rods apart. A pathway connected their homes. Henry accorded Hiram honor because of his patriotic service in the War of the Rebellion, during which Henry was accumulating property at home, and desired to recognize his supreme devotion to their common country by a...
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