Hagerty v. Hagerty
| Decision Date | 19 May 1919 |
| Docket Number | 32429 |
| Citation | 172 N.W. 259,186 Iowa 1329 |
| Parties | ELIZABETH HAGERTY et al., Appellants, v. DANIEL HAGERTY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 20, 1919.
Appeal from Adair District Court.--W. H. FAHEY, Judge.
ACTION to quiet title. Opinion states the facts. Decree dismissing plaintiffs' petition. Plaintiffs appeal.
Reversed.
George B. Lynch and Carl P. Knox, for appellants.
P. L Sever and John Connolly, Jr., for appellee.
This action is brought to quiet title to a certain 160 acres of land. The defendant filed a cross-petition, asking that the title be quieted in him. The plaintiffs are the wife and son of the defendant's youngest boy, J. S. Hagerty. The defendant is the owner of the record title to the land. He purchased it in 1905 or 1906, and took title in his own name, and it has so remained ever since. On March 17, 1906, with the knowledge and consent and at the request of the defendant, J. S. Hagerty, with his family (these plaintiffs), took possession of this farm, and continued to occupy it as a home until December, 1914, and during that time made valuable improvements upon the farm, paid all taxes, and paid the interest accruing upon a certain mortgage that was then upon the farm, and was never called upon by the defendant to account for any of the rents or profits accruing therefrom. In December, 1914, on account of ill health, J. S. rented this farm in his own name, and took the rent notes payable to himself, with the knowledge and consent of defendant, and then moved with his family to the town of Stuart. He lived in the town of Stuart until his death, which occurred on the 23d day of May, 1916. During all the time he lived in Stuart, he collected and used all the rents from the farm, with the knowledge and consent of this defendant, and paid the taxes and the interest on the mortgage out of his own funds, during all the time he was in possession, whether in person or by tenants. The rent notes unpaid at the time of his death passed into the hands of his administrator, and were listed among his assets. On the death of J. S., defendant refused to make a deed of the land to his successors, the plaintiffs in this suit; and so this action was brought.
The contention of the plaintiffs is:
(1) That the defendant bought the farm for his son, and made an oral gift of it to J. S. in 1906, and, in consummation of the gift, delivered to him the possession; so that the title, through the gift thus executed, passed instanter to J. S., and was in him at the time of his death.
(2) That, if the gift should be considered imperfect, then, as J. S. took possession of the land in 1906, in reliance upon a claimed oral gift, and remained in the open possession of the same, with the knowledge of the defendant, ever since, under claim of right based upon the alleged gift, and has made valuable improvements, paid the taxes and interest on the loan then on the land, in good faith believing that the delivery of possession was in execution of a gift, the title was in J. S. at the time of his death, by adverse possession.
The defendant's contention, however, is that he did not make a gift of the land to J. S.; that J. S. did not take possession relying upon a gift of the land; that it was the understanding, when he took possession, that he should have only the right to use the land, free of rent, on condition that he pay the taxes and interest on the mortgage.
Under these issues, the cause was tried to the court, and a decree rendered for the defendant, dismissing plaintiffs' petition. From this decree, the plaintiffs appeal.
It is apparent that the case presents simply fact questions, with the burden of proof upon the plaintiffs.
It is conceded that the defendant purchased the property and took the title in his own name, and that the record title has so remained ever since.
We will consider, first, plaintiffs' claim based on a present parol gift, executed by delivery of the subject-matter of the gift. On this branch of the case, the question to be determined is: Did the defendant have a present intent to make a gift of the property in question to his son at the time the son took possession, and was the delivery of the possession to the son made in pursuance and in execution of that intent? Proof of delivery of possession, and the holding of possession for any number of years after delivery, do not, in and of themselves, establish the gift. To establish the gift, the evidence must show an intent and purpose on the part of the giver to pass the title to the donee upon delivery of possession, followed by delivery of possession in pursuance of that purpose and intent. Proof of an intent to give at some future time, or proof of expressed purpose to give at some future time, is not sufficient, though possession is delivered and held. There must be proof of intent to make a present gift; that is, proof of a present intent and purpose to pass the title to the other, followed by an actual delivery of the thing which is the subject-matter of the gift. The delivery of possession is only the final step in the execution and consummation of the gift. The burden of proof is on the plaintiff to prove all the elements essential to a consummated gift, and testimony to establish a gift against the record title must be clear and satisfactory, and, as sometimes said, conclusive. See Truman v. Truman, 79 Iowa 506, 44 N.W. 721; Wilson v. Wilson, 99 Iowa 688, 68 N.W. 910. In this last case, it is said:
The same doctrine is announced in Farlow v. Farlow, 154 Iowa 647, 649, 135 N.W. 1, in which it is said:
"A gift, to be effectual, must be fully executed; and the question of whether or not there has been a gift in a given case is one of fact, in which the intention of the alleged donor in delivering the property is a very material inquiry."
It follows that the surrender of possession, the giving of the right to occupy, and the occupancy for any number of years, do not establish a gift. The gift, the intention to give, and the intention to pass title to the donee must be proven, together with the actual delivery of the subject-matter of the gift. This, however, may be shown by facts and circumstances, as well as by direct testimony. The delivery of possession is merely a consummation of the gift, and is essential to a completed gift. Mere occupancy of the land for any number of years, with the knowledge and consent of the record owner, is not, in and of itself, sufficient to establish a gift; for this is often true though there be no gift, and no intention to give to the occupant the title to the thing occupied.
"Intent is an act or emotion of the mind, seldom, if ever, capable of direct or positive proof, but is arrived at by such just and reasonable deductions from the acts and facts proven as the guarded judgment of a reasonably prudent and cautious man would ordinarily draw therefrom."
Turning to the evidence as we find it in the record, we note that the defendant was nearly 80 years of age at the time this suit was brought; that there were born to him four children, one daughter and three sons,--a daughter, Mary, born in 1871; a son, William, born in 1873; a son, Charles, born in 1875; and the son J. S., born in 1877. In 1880, he purchased a farm of 160 acres, near the town of Templeton, Carroll County, known as the Templeton farm. He immediately moved to and occupied this farm, with his wife and children, and later, while residing on this farm, he purchased 80 acres in the same county. Here the defendant lived and educated his family, and laid the foundation for his fortune. His daughter, Mary, was married in 1897, and immediately moved with her husband to Adair County. Her husband died in 1910, leaving her and her children 240 acres of land. In 1898, defendant bought another farm of 160 acres in Guthrie County, near Dexter. The defendant never assumed any control over this farm, but immediately after the purchase, passed it into the possession of his son Charles, who has occupied and farmed the same ever since, and was in the possession and occupancy, with all the indicia of ownership, up to the time that J. S. died. In 1908, he sold the Templeton farms, consisting of 160 and 80 acres, and purchased a farm of about 240 acres in Adair County, a few miles south of Menlo. The title to one of the 80's so purchased was taken in the name of his wife, who died in 1915. Here the defendant resided, with his wife and one unmarried child, William, until the year 1912, when he and his wife moved to the town of Stuart, leaving William, who had married, in the possession of this farm. During the winter of 1905, the defendant purchased the farm in question, known as the Kelley farm, and, on March 17, 1906, placed his youngest son, J. S., with his wife (one of the plaintiffs), immediately in possession of it, as hereinbefore stated. These children all continued to occupy this land, rendering no account to the father for the rents and profits, until the death of J. S. No deeds were made to any of this land to any...
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