In re Orwig's Estate
Decision Date | 20 May 1918 |
Docket Number | No. 31147.,31147. |
Citation | 167 N.W. 654,185 Iowa 913 |
Parties | IN RE ORWIG'S ESTATE. IN RE ORWIG ET AL. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; L. De Graff, Judge.
Proceeding in the estate of Thomas G. Orwig, deceased, wherein the administrator of his estate applied for instructions as to claim of Rebecca H. Orwig. The opinion states the case. Rebecca H. Orwig appeals. Reversed.
A. F. Brown, of Des Moines, for appellee Frank I. Cramer, Adm'r.
E. D. Marshall, of Keystone, Neb., and McLaughlin, Shankland & Lappen, of Des Mones, for other appellees.
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 northwest quarter of lot 6 of Rose's addition to Ft. 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 did it belong 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.
[1][2] 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.
[3] 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 northwest quarter of lot 6 of Rose's addition to Ft. Des Moines, commonly known as No. 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 No. 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.”
[4] 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 Atl. 519, the description was of “all my right, title, and interest in and to all real estate * * * 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:
In Barksdale v. Barksdale, 92 Miss. 166, 45 South. 615, the grant was of The grantor had acquired a tract of land in that county other than “Minter place” under a will, and deciding that it passed under the deed notwithstanding the expression “known as Minter place” the court said in part:
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 on the south, and Price street on the west, and known on said map as blocks Nos. one (1) to thirty-two (32) inclusive.”
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Northern Welding Co. v. Jordan
... ... Ripley, 161 Mo ... 126, 132, 61 S.W. 587; English v. Shelby, 116 Ark ... 212, 172 S.W. 817; In re Orwig's Estate, 185 ... Iowa 913, 167 N.W. 654. The result is that the fact that the ... $4,200 verdict was set aside is unimportant ... 2 ... ...
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N. Welding Co. v. Jordan
... ... See National Bank v. Ripley, 161 Mo. 126, 132, 61 S. W. 587;English v. Shelby, 116 Ark. 212, 172 S. W. 817;In re Orwig's Estate, 185 Iowa, 913, 167 N. W. 654. The result is that the fact that the $4,200 verdict was set aside is unimportant. 2. Three of the claims for damages ... ...
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