Ferrell v. Stinson

• Decision Date: 16 November 1943
• Docket Number: 46338.
• Citation: 11 N.W.2d 701,233 Iowa 1331
• Parties: FERRELL v. STINSON et al.
• Court: Iowa Supreme Court

11 N.W.2d 701

233 Iowa 1331

FERRELL v. STINSON et al.

No. 46338.

Supreme Court of Iowa

November 16, 1943

C. M. Parker, of Cedar Falls, and Marty &amp Butler, of Mason City, for appellants.

Leming & Hobson, of Hampton, and H. S. McCluskey, of Phoenix Ariz., for appellee.

GARFIELD Justice.

The land in controversy is a farm of 220 acres in Franklin county, Iowa subject to a mortgage of $2,500. Plaintiff asserts there was no valid delivery of the deed under which defendants claim. In her lifetime, the property was owned by Miss Mary Kamberling, who died on October 2, 1940, in Phoenix, Arizona. She was an only child who had inherited the farm from her parents. She had no near relatives. From early childhood Mary was a cripple who used crutches when she attended school in Iowa Falls, her girlhood home. She developed tuberculosis and about 1917 was taken to Phoenix where she continued to live as an invalid until her death.

In Iowa Falls, Mary formed a most intimate and enduring friendship with Mrs. Esgate, one of the defendants, a daughter of the late Justice Weaver of this court. In 1916 Mrs. Esgate also moved from Iowa Falls to Phoenix and lived there until 1932 when she moved to Washington, D. C. Mary lived with Mrs. Esgate part of that time. After moving to Washington, Mrs. Esgate returned to Phoenix for about six weeks on each of five occasions, during which she did what she could to relieve Miss Kamberling, whose condition grew progressively worse. Miss Kamberling was indebted to Mrs. Esgate and her husband for money loaned her.

The other two defendants who, with Mrs. Esgate, were grantees of the deed, are Brooks Baughman of Cedar Falls, Iowa, a first cousin of the grantor (apparently her nearest living relative), and Mrs. I. W. Stinson of Mason City, Iowa, a distant cousin of Mary and a first cousin of plaintiff Mrs. Ferrell, also a distant cousin of the grantor-testatrix. Miss Kamberling was also attached to these three cousins, defendants Baughman and Mrs. Stinson, and plaintiff Mrs. Ferrell, who visited and assisted her at times.

The deed under which the three defendants claim was executed on December 2, 1939, in Phoenix. Miss Kamberling, bedridden at the time, called in a young lady notary who lived next door, gave her a copy of a quitclaim deed she had filled in with pencil and asked her to copy it on a typewriter. As directed, the notary typed the deed on another form which was duly signed, witnessed by two witnesses and acknowledged. The grantor then handed the executed deed to her housekeeper, Mrs. Orbison, and asked her to put it in a little metal box in a closet opening into her bedroom. The servant did as directed and the deed remained in the box in the closet during the ten months until the grantor's death. The box was not locked and there is no evidence that there was a key for it.

About the time the deed was executed Miss Kamberling talked to the same notary about making a will. The notary, as requested, asked an attorney, Mr. Karz, to get in touch with Miss Kamberling. This attorney prepared a will and it was executed the following day, December 3. The will provides for payment of debts of the testatrix, directs the sale by her executrix of her real estate in Phoenix, describing it, in the event her debts are fully paid from her personal property, leaves two legacies of $400 each and some personal belongings, and bequeaths all the rest and residue of her estate to plaintiff Mrs. Ferrell. Following Miss Kamberling's death the will was admitted to probate both in Arizona and Franklin county, Iowa. Plaintiff claims the farm in question as residuary devisee.

Mrs. Flora Thompson was a close friend of Miss Kamberling who was named in the will as executrix. On December 3, the day the will was made, Miss Kamberling told Mrs. Thompson in substance, "I have made a deed of my Iowa farm to Mrs. I. W. Stinson, Brooks Baughman and Mrs. A. T. Esgate (the defendants), and the deed is placed in the box in the closet with other papers and after I am gone you are to take the deed out of the box and send it to Jane," meaning Mrs. Stinson. In this conversation Mrs. Thompson told testatrix she had always done everything she could for her while alive and would be very glad to do what she could after Miss Kamberling was gone. Mrs. Thompson had frequently seen the box in the closet before that time, but did not see it again till the day after Miss Kamberling's death. Mrs. Thompson then found the deed in the box in the closet, and on October 4, 1940, as directed by the grantor, mailed it to Mrs. Stinson at Mason City, who had it placed of record in Franklin county. When opened by Mrs. Thompson, the box contained the deed, the will, some old canceled mortgages and checks and some tax receipts. The box in which the deed was kept apparently was not used for current papers. The lease to the farm and bills were kept in a folder in a table drawer in the sick room.

There is no doubt that Miss Kamberling desired and intended defendants should have this farm and believed she had effectively conveyed the farm to them. The equity in the Iowa farm is worth approximately three times her other property, her personalty and Arizona real estate. It is plain that she intended to divide her estate in four nearly equal shares between her three cousins and her devoted friend Mrs. Esgate. These four were the principal natural objects of her bounty.

The attorney who drew the will testified without objection: "At the time she gave me the information with respect to the will she told me she had disposed of her property in Iowa; that she had executed deeds to the people she wanted to have that property, and it would not be necessary to insert it in the will or be bothered with probate proceedings. *** She told me specifically at that time she had disposed of the property by deed, and that all had been taken care of long before the will was drawn, that is, the property out of the State of Arizona."

There is competent evidence that Miss Kamberling told the grantees of the making of the deed. She also told intimate friends she had deeded her Iowa farm to the three defendants. Mrs. Smith, an acquaintance of twenty years who wrote letters for the invalid, testified: "Mary Kamberling had told me what disposition she had made of the Iowa land. *** Shortly after Mary Kamberling made her will I was at her house and she told me she had made her will which covered her Phoenix property. She said, 'Not the farm, the Iowa property,' because that was deeded to Mrs. Esgate, her cousin Brooks (Baughman), and Mrs. Stinson; that she deeded it because they might break a will but a deed would secure the property and insure it going to the people she wanted it to go to."

Although the grantor lived ten months after making the deed and will, it fairly appears that she made them in contemplation of impending death. She was in the advanced stages of tuberculosis with many complications and was failing rapidly. There is no evidence she was able to or did leave her bed except to go to the hospital in January or February, 1940, for an operation in an attempt to prolong her life.

It was stipulated upon the trial that, until she died, Miss Kamberling rented the farm, received the rents and controlled its operation.

I. The deed having been duly executed and recorded, plaintiff has the burden of proving its nondelivery by evidence that is clear, satisfactory and convincing. This is true even though the recording was after the grantor's death. Jones v. Betz, 203 Iowa 767, 768, 210 N.W. 609, 213 N.W. 282; Huxley v. Liess, 226 Iowa 819, 823, 285 N.W. 216; Hodgson v. Dorsey, 230 Iowa 730, 733, 298 N.W. 895, 896, 137 A.L.R. 456. Plaintiff does not question the above rule but contends the presumption of delivery has been conclusively rebutted.

II. Delivery is of course essential to the validity of a deed. Our own and other decisions hold that delivery depends very largely upon the intent of the grantor, to be determined by his acts or words or both, and that a manual delivery is not essential if it appears that the grantor intended to relinquish dominion and control over the deed and have it take effect as a present conveyance of title. Anno. 129 A.L.R. 11, 12, and cases cited.

We have frequently said that actual manual transfer of the paper is not necessary and that acts and words evincing the grantor's intent to part with the deed and relinquish his right over it is a sufficient delivery. Kyle v. Kyle, 175 Iowa 734, 738, 157 N.W. 248; Keating v. Augustine, 213 Iowa 1336, 1339, 241 N.W. 429; Arndt v. Lapel, 214 Iowa 594, 607, 243 N.W. 605; Beery v. Glynn, 214 Iowa 635, 641, 243 N.W. 365. We have declared time and again that the intent of the grantor is the controlling element in the delivery of a deed. See, for example, Huxley v. Liess, 226 Iowa 819, 823, 285 N.W. 216; Bohle v. Brooks, 225 Iowa 980, 985, 282 N.W. 351; Goodman v. Andrews, 203 Iowa 979, 981, 213 N.W. 605.

This court has uniformly held that where an unrecorded deed is found in a box belonging to the grantor after his death, without more, there is no presumption of delivery. Among cases of this kind are Blain v. Blain, 215 Iowa 69, 77, 244 N.W. 827; Shetler v. Stewart & Weber, 133 Iowa 320, 324, 107 N.W. 310, 110 N.W. 582; Miller v. Murfield, 79 Iowa 64, 44 N.W. 540. See, also, In re Estate of Martens, 226 Iowa 162, 283 N.W. 885, and In re Cornish's Estate, Iowa, 10 N.W.2d 85, which, however, relate to personal property.

We have also frequently held that an effective delivery may be made by placing the deed in the hands of a third person, without reserving the right to recall it and with instructions to deliver to the grantee after the grantor's death. If the conveyance is beneficial to the grantee, the third...