Hild v. Hild

• Decision Date: 13 February 1906
• Citation: 129 Iowa 649,106 N.W. 159
• Parties: HILD v. HILD ET AL.
• Court: Iowa Supreme Court

129 Iowa 649

106 N.W. 159

HILD

v.HILD ET AL.

Supreme Court of Iowa.

Feb. 13, 1906.

Appeal from District Court, Keokuk County; W. G. Clements, Judge.

Action in partition. From the decree rendered, the defendants appeal. Affirmed.F. L. Goeldner, for appellants.

Stockman & Hamilton, for appellee.

PER CURIAM.

The title to 40 acres of the land in controversy was formerly in one Nicholas Besser. Nicholas Hild and his wife were in possession of the property when the husband died intestate June 26, 1904. It now appears that on May 5, 1902, Besser executed a conveyance of the land to Nicholas Hild and Margaret Hild jointly and for some reason placed it in the possession of Nicholas Hild. Thereafter, on May 14, 1902, Besser executed another conveyance of the same property to Nicholas Hild individually but did not take up or resume possession of the one first made. The controversy in this proceeding is whether the title passed by the first or second conveyance here mentioned.

It is the contention of appellants that the first deed was never delivered as such, but was taken by Hild for examination, and, not being satisfied to except it in that form, the second deed was made and duly delivered. The plaintiff's claim is upon the theory that the first deed was duly delivered and that a subsequent change of the grantor's mind or a delivery of the new conveyance could not have the effect to eliminate the vested right of Margaret Hild as a grantee. It will be observed that the question here raised turns entirely upon the fact whether there was any delivery of the first deed. It is true that the mere fact that the instrument passed into the hands of Nicholas Hild is not of itself sufficient to constitute a delivery, but the fact that it was placed in his possession and remained there until his death two years later carries with it a very strong presumption of delivery, a presumption which could be overcome only upon a clear and satisfactory showing that a delivery was intended by the parties. The trial court, having the witnesses before it, found for the plaintiff, and from an examination of the record we are inclined to coincide with that conclusion. There is nothing in the testimony calling for any special discussion by this court.

It is next urged that a partition of the real estate cannot be had until the debts of the estate are paid. It appears from the record that the tract in question is a homestead, and so far as shown it is not and cannot be...