In re Estate of Orwig

• Decision Date: 20 May 1918
• Docket Number: 31147
• Citation: 167 N.W. 654,185 Iowa 913
• Parties: IN RE ESTATE OF THOMAS G. ORWIG
• Court: Iowa Supreme Court

167 N.W. 654

185 Iowa 913

IN RE ESTATE OF THOMAS G. ORWIG

No. 31147

Supreme Court of Iowa, Des Moines

May 20, 1918

REHEARING DENIED MARCH 24, 1919.

Appeal from Polk District Court.--LAWRENCE DEGRAFF, Judge.

Reversed.

Thos J. Guthrie, W. P. Bair, Joseph I. Brody, and Roy E. Curray for appellant.

A. F. Brown, E. D. Marshall, and McLaughlin, Shankland & Lappen, for appellees.

LADD, J. WEAVER, GAYNOR, SALINGER, and STEVENS, JJ., concur. EVANS, J., PRESTON, C. J., (dissenting).

OPINION

THE opinion states the case. Rebecca H. Orwig appeals.--Reversed.

LADD J.

Thomas G. and Mary Orwig acquired title to Lot 1 of Hubbell's Subdivision of the northwest quarter of Lot No. 6 of Rose's Addition to the city of Des Moines, under a deed made to them prior to January 1, 1907. In March, 1907, Mary Orwig died, leaving as her only heirs, her husband, Thomas G., and her daughter, Mabel Sweet. By operation of law, therefore, Thomas G. became owner of two thirds of the lot, and Mabel Sweet of one third thereof. On the 1st day of June of the same year, Thomas G. Orwig entered into a contract with George and Mary Stanton to convey the south 42 feet of said Lot 1, upon the payment of the purchase price of $ 1,200, in installments of $ 12.50 each, on the first day of each and every month, beginning June 1, 1907. On May 24, 1911, Thomas G. Orwig, being then a single man, executed to Rebecca H. Orwig a warranty deed, reciting "a consideration of labor performed by the grantee herein and for other good and valuable consideration," and describing the property conveyed as "Lot 1 of Hubbell's Addition of the N.W. quarter of Lot 6 of Rose's Addition to Fort Des Moines, commonly known as Number 1210 Pleasant Street." Subsequent to the recording of this deed, suit was instituted by Mabel Sweet against Rebecca H. Orwig, and, on hearing, decree was entered, deciding that the deed was valid, and given for a good consideration. Thereafter, and on February 26, 1913, Mabel Sweet executed a deed conveying to Rebecca H. Orwig the grantor's undivided one third of said Lot 1. The Stantons had gone into possession, at the time of the contract between them and Thomas G. Orwig, and had so continued since; and, though having paid nearly $ 500 on the contract, suspended payment for a time, and later tendered payment of installments to the administrator of Thomas G. Orwig. The administrator reported these facts to the court, and that four claims filed against the estate of Orwig were unpaid, and prayed for instructions as to whether the contract with the Stantons was an asset of the estate, and should be collected as such, or whether it belonged to Rebecca H. Orwig. The latter pleaded the warranty deed from Orwig and the quitclaim deed from Mabel Sweet, and that, under the former, she (Miss Orwig) acquired the interest of decedent in the contract with the Stantons, and she prayed that the administrator be instructed to turn over to her the said contract and the moneys collected thereon. The sole issue, then, is whether the contract with the Stantons passed to Rebecca H. Orwig by virtue of the warranty deed from Thomas G. Orwig.

I. The deed from decedent to Miss Orwig recites a valuable consideration; and that there was such is not questioned by any pleading. Moreover, a valuable consideration is to be presumed. Though the grantee, in testifying, spoke of decedent's promise, often repeated, to give her the property, and of his having given her the deed, it appeared that she had worked in grantor's office from March, 1907, until September, 1911, and had kept house for him during this period, and until his death. This evidence is not necessarily inconsistent with the "consideration of labor performed by the grantee herein," recited in the deed. In these circumstances, it cannot well be ruled that the deed was without full consideration.

II. Appellees contend that the deed conveyed only that portion of the lot not occupied by the Stantons, i. e., Lot No. 1210. The description contained is not subject to this construction:

"Lot 1 of Hubbell's Subdivision of the N.W. quarter of Lot 6 of Rose's Addition to Fort Des Moines, commonly known as Number 1210 Pleasant St. Excepting an undivided two-sixths (2/6) thereof, which belongs to Mabel S. Sweet, and reserving to myself an estate in said real property for the rest of my natural life. And I hereby covenant with the said Rebecca H. Orwig that I hold said premises by good and perfect title; that I have good right and lawful authority to sell the same and that they are free and clear from all incumbrances whatsoever, excepting one mortgage of $ 500 to the Iowa Loan & Trust Company, dated March 15, 1907, and a second mortgage to the Iowa Loan & Trust Company for $ 300, dated October 5, 1910. And I covenant to warrant and defend the said premises against the lawful claim of all persons whomsoever.

"Signed this 24th day of May, 1911."

It will be noted that the description of the lot is complete without the added words, "commonly known as Number 1210 Pleasant St." The italics are ours. This clause must be rejected, for that the preceding description of the property granted is clear and unambiguous, and the clause in italics does not limit or restrict such description. The rule prevailing in this state is well stated by Cole, J., in Barney v. Miller, 18 Iowa 460:

"Where a deed of conveyance contains a general description of the property conveyed, which is definite and certain in itself, and is followed by a particular description also, such particular description will not limit or restrict the grant which is clear and unambiguous by the general description. * * * This is a rule of construction, and is, of course, limited to the cases which are within it. Where the general description is indefinite and uncertain, and reference to the particular description must be had, in order to ascertain with certainty the subject of the grant, in such cases, the rule does not apply. But, then, the whole language will be taken together, and though it may be ambiguous, or even contradictory, if, upon the whole instrument, there is sufficient to manifest the intention of the parties with reasonable certainty, that will suffice."

See, also, as laying down the same rule, Marshall v. McLean, 3 G. Greene 363, and Cummings v. Browne, 61 Iowa 385, 16 N.W. 280. The italicized words are merely by way of explanation or reference, and as such, do not impair or destroy the specific grant preceding. The authorities are uniform in so declaring.

In Hobbs v. Payson, 85 Me. 498 (27 A. 519), the description was of "all my right, title, and interest in and to all real estate situated in Hope, Warren and Union [Counties]," to which was added, "meaning to convey all my right, title, and interest in the real estate formerly occupied by me," and the latter clause was held not to limit the grant to such estate only, the court saying:

"It rather makes sure that such lands were to be included with those of which the grantor had the visible occupation. They are words of inclusion, and not of exclusion. Words of reference or of explanation never destroy a specific grant. * * * They are useful where the description is imperfect, and where it is aided rather than controlled by them."

In Barksdale v. Barksdale, 92 Miss. 166 (45 So. 615), the grant was of "all the land bequeathed to me by the will of my uncle, Hickerson H. Barksdale. All of said lands are lying and being situated in said Grenada County, known as the Minter Place, and state of Mississippi." The grantor had acquired a tract of land in that county other than "Minter Place," under a will; and, in deciding that it passed under the deed, notwithstanding the expression, "known as the Minter Place," the court said, in part:

"It is perfectly plain that 'all said lands' are in Grenada County, Mississippi. The general rule that, 'where a general description is followed by a particular description, the particular description controls, and the other will be rejected,' is, of course, thoroughly sound; but in every such case, the particular description must be, not a redescription merely, but a second limiting description, a second granting clause. Where the alleged second description in no way limits or cuts down the area of the general granting clause, perfect in itself, then such alleged second description is nothing more nor less than a redescription, a mere reiteration, an effort to give to the land embraced in the general grant some other name by which it may be known in a community, without any purpose in mind to cut down from the extent and area of the perfectly correct general grant. What have we here that is relied on to cut down this good, this perfect, description in the general grant? Nothing save the mere participial phrase, carelessly thrown in, 'known as the Minter Place.' It would be sacrificing substance to form, it would be an utter disregard of the plain intent of the grantor, to say that, after he had plainly declared his purpose to convey all the lands in Grenada County, state of Mississippi, devised to him by his uncle, he had cut down a perfect grant by the careless use of the mere participial phrase, 'known as the Minter Place.' The general principle to which we have above referred had no application to the language of this deed. This is a mere reiteration or attempted redescription of what had already been perfectly conveyed. It does not carve out of the original grant, or except from the original grant, by a particular description of any kind, any part or parcel of that original grant."

In Friedman v. Nelson, 53 Cal. 589, the description was:

"All that beach and water property lying between Folsom Street on the north, Ship's Channel on the east, the city limits...