Foreman v. Archer

• Citation: 106 N.W. 372,130 Iowa 49
• Parties: FOREMAN ET AL. v. ARCHER ET AL.
• Decision Date: 07 March 1906
• Court: United States State Supreme Court of Iowa

130 Iowa 49

106 N.W. 372

FOREMAN ET AL.

v.ARCHER ET AL.

Supreme Court of Iowa.

March 7, 1906.

Appeal from District Court, Buchanan County; A. S. Blair, Judge.

Action in equity to set aside and declare void a certain conveyance of real estate executed by Rebecca Keenan to the defendants Mamie E. Archer and John Archer. From a decree in favor of defendants, the plaintiffs appeal. Affirmed.Cook & Cook and R. E. Leach, for appellants.

J. T. Sullivan and M. W. Harmon, for appellees.

WEAVER, J.

On October 24, 1903, one Rebecca Keenan was the owner of the property in controversy, and the defendants Mamie E. Archer and John C. Archer were her orphaned minor grandchildren, living in her home. On the date mentioned Mrs. Keenan, then a widow, made and executed in due form a deed conveying the property to her said grandchildren, with reservation of life use for herself, for the expressed consideration of love and affection and $1 in hand paid. In April, 1904, Mrs. Keenan died, and on May 2d thereafter the deed was filed for record in the office of the county recorder. The heirs at law of the deceased grantor are Ira D. Foreman and W. D. Foreman, her sons, Mary Beattie, her daughter, Neva M. Andrews and Clara I. Fowler, children of a deceased son, and the grantees named in the deed, children of a deceased daughter. Soon after the recording of the deed as aforesaid this action was begun by the above-named son, Ira D. Foreman, and the grandchildren, Neva M. Andrews and Clara I. Fowler, to avoid and set aside the deed on the ground that the same had never made effective by delivery. By an amendment to the petition Mary Beattie and W. D. Foreman, who do not join in bringing the action were made defendants. The answer of the defendants admits the making and recording of the deed, but denies plaintiffs' allegation of nondelivery, and avers that the deed was in fact duly delivered by the granter at the time of its execution into the hands of a third person for the use and benefit of the grantees, to be placed of record upon the death of the grantor. Upon the trial on the merits of the case the district court found for the defendants, and plaintiffs appeal.

1. Mary Beattie and Mamie E. Archer were sworn and examined as witnesses on behalf of the defendants, and over the objection of plaintiffs to their competency were permitted to testify to matters claimed to be within their knowledge concerning the making and delivery of the conveyance in question. As to some of these matters it is quite probable that the appellants' objection was well taken; but in our judgment this part of the testimony may be disregarded without in any manner affecting the result of the trial. Much of the testimony was not, however, vulnerable to the objection made. For instance, the facts testified to by Mrs. Beattie go almost entirely to statements made by Mrs. Keenan in the presence of the witness to a third person; and this, we have often held, is admissible. Sweezey v. Collins, 40 Iowa, 540;Leipird v. Stotler, 97 Iowa, 169, 66 N. W. 150;Lines v. Lines, 54 Iowa, 600, 7 N. W. 87;Smith v. James, 72 Iowa, 515, 34 N. W. 309. It may also be said of the testimony of Mamie E. Archer that, in so far as it did not undertake to relate personal transactions or conversations between herself and her grandmother, she was entirely competent to speak as a witness. Objection was also made to the testimony of J. T. Sullivan, who is an attorney at law, on the ground that his knowledge of the facts stated by him was obtained as a matter of professional confidence, while acting as counsel for Mrs. Keenan in her lifetime. The most material part of Mr. Sullivan's testimony related to matters done in open court, and to statements made by Mrs. Keenan to the court in making settlement of her trust as guardian of the estate of Mamie E. Archer and John C. Archer. To this extent, at least, the competency of the witness to speak is too manifest to require argument, and, as we have already said, all other matters testified to by him may be disregarded.

2. We now come to the principal question raised by the appeal: Was there a sufficient delivery of the deed to sustain the grantee's claim of title? The record tends to show that on the day the deed was made, Mrs. Keenan, who was then in ill health, sent for Mr. E. B. Abbott, a lawyer of her acquaintance, and consulted with him concerning the disposition of this property by will or by deed to the two grandchildren then living with her. Mr. Abbott advised her that the purpose could be accomplished by a will, or a deed could be made with reservation of a life estate in herself, and placed of record for the benefit of the children, or the instrument could be executed and placed in the hands of a third person, to be recorded only upon her death. The latter plan appears to have appealed to Mrs. Keenan as the most direct and involving the least expense, and she directed the attorney to return the next day, prepared to draw the deed. Accordingly, on the following evening Mr. Abbott again visited Mrs. Keenan, and in her presence filled out the blank form, explaining to her the nature and effect of the conveyance, and that he would hold it and record it after her death. The instrument was then duly executed, and the grantor gave it to Mr. Abbott, with 75 cents to pay for recording the same, and told him to keep it and place it of record after her decease. Mr. Abbott took the paper to his office, and put it, with the recording fee, in an envelope marked “Mamie E. and John C. Archer, Deed, to be Recorded on Death of Rebecca Keenan.” This package he deposited in his safe, where it remained for some time. The only person present at the time the deed was executed, other than the grantor and Mr. Abbott, was a Miss Kinsley, who is the principal witness on part of the appellants. Her testimony is in no manner inconsistent with that of Mr. Abbott, whose version we have thus far followed; for, while Miss Kinsley says she “understood” Mrs. Keenan was to keep the deed, she immediately adds: “I went out of the room, and I do not know what was done with it.” Indeed, she appears not to have been present during any of the conversation between the grantor and Abbott, except as she was called in to sign the conveyance as a witness and then retired. The testimony of Mr. Abbott in respect to the transaction is entirely consistent and reasonable, and no fact or circumstance is disclosed to discredit it. Later, just how long after the making of the deed does not clearly appear, Mrs. Keenan seems to have become worried by the apprehension that Abbott would have the deed prematurely recorded without her consent, and expressed to Miss Kinsley her anxiety to get it back into her possession. When she applied to him for its return, he told her that he doubted his right to give it up, as the deed was in his possession for the children; but thereafter, when Mamie came to him with a message from her grandmother asking him for it, he gave it to her. After it was brought back to her, Mrs. Keenan then asked Miss Kinsley to take charge of it, but she declined to accept it. Thereupon Mrs. Keenan placed the instrument in a satchel which she kept near her bed, explaining her purpose in language which is quite significant. We quote from the testimony of Miss...