Hutton v. Smith

• Decision Date: 18 May 1893
• Parties: HUTTON v. SMITH.
• Court: Iowa Supreme Court

88 Iowa 238

55 N.W. 326

HUTTON

v.SMITH.

Supreme Court of Iowa.

May 18, 1893.

Appeal from district court, Calhoun county; G. W. Paine, Judge.

Action to quiet title. Decree for plaintiff. Defendant appeals.O. J. Jolley, for appellant.

C. A. Irwin, for appellee.

KINNE, J.

1. This action was brought by plaintiff to quiet title to 80 acres of land in Calhoun county. The petition averred that plaintiff was the absolute owner of the land, and that defendant asserted a claim under a deed from William Palmatier and Minnie F. Palmatier, executed in October, 1890; that said William had no interest therein except as the husband of Minnie F. Palmatier, and that the latter had no right therein except as created by a warranty deed from plaintiff to her, of date October 23, 1889, and that said deed was never delivered; that Minnie F. Palmatier is the daughter of plaintiff; that no consideration was paid for the deed. It also claimed that the land was plaintiff's homestead, and had never been conveyed by any joint instrument; that, at the time of the conveyance of the land to defendant by William Palmatier and Minnie F. Palmatier, he had actual notice of all the facts pleaded. Defendant filed a general denial, and a cross petition claiming title in himself, and asking to have it quieted.

2. The controlling and only question we need consider in this case is whether the deed from plaintiff to Minnie F. Palmatier was ever delivered to the grantee therein. The facts, as disclosed by the record, so far as material to this inquiry, are that on October 23, 1889, plaintiff, who then held the legal title to the land in controversy, executed a deed for it to Minnie F. Palmatier, her daughter. Plaintiff caused the deed to be recorded, and, after it had been recorded, received it back from the recorder, and placed it in a tin box in her room in the house where she was then living. It remained there until the next summer, when the husband of her daughter, without plaintiff's knowledge or consent, took it from the box, and kept it, so far as appears, afterwards. Some time after he had taken it, plaintiff learned of the fact, and demanded it of him. He promised to return it, but never did so. When he took the deed his wife (plaintiff's daughter) and plaintiff were living in the same house, though plaintiff appears to have had a separate room for her own use, in which the box was kept. After obtaining the deed, Palmatier and his wife executed a mortgage to the defendant upon the land, and later on deeded the land to defendant for a consideration of about $440. It is under this deed that defendant claims title. The testimony satisfies us fully that the deed from plaintiff to her daughter never was delivered. Authorities need not be cited in support of the doctrine that a delivery of a deed is essential to a transfer of title to real estate. It has often been held that a deed found in the possession of the grantee would be presumed to have been delivered and accepted. Wolverton v. Collins, 34 Iowa, 238;Craven v. Winter, 38 Iowa, 471;Blair v. Howell, 68 Iowa, 619, 28 N. W. Rep. 199. Delivery may also be presumed from the fact that a deed has been executed, acknowledged, and filed for record by the grantor. Robinson v. Gould, 26 Iowa, 89;Craven v. Winter, 38 Iowa, 471;Foley v. Howard, 8 Iowa, 56. But, even when the filing of a deed for record raises a presumption of delivery, such presumption may be overcome by proof that the acts relied upon were not intended to constitute a delivery. The question of delivery of a deed is always one of intention of the parties. The act of delivery is not complete unless there be an acceptance on the part of the grantee. Hence it follows that, if the deed comes into the possession of the grantee without any intention on the part of the grantor that it shall become...