Johnston v. Linder
Decision Date | 23 October 1913 |
Citation | 168 Iowa 441,143 N.W. 410 |
Parties | JOHNSTON v. LINDER ET AL. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jefferson County; C. W. Vermillion, Judge.
Andrew Johnston, now deceased, a devisee under the will of John Linder, deceased, brought this action to partition a certain tract of land, containing 498 acres, which it is claimed was owned by Linder at the time of his death, making Harriet C. Linder surviving widow and certain other parties, who claimed some interest in the land, parties defendant. The defendants averred that they owned the real estate in controversy at the time of the death of Linder and that plaintiff never had any interest therein. They set out in their answer what purports to be a deed from John Linder and his wife, Harriet C. Linder, to defendants, other than Harriet, for the entire property, subject only to a life estate in the grantors named. The grantees are the children and grandchildren of Harriet C. Linder but were not related save by marriage to John. Plaintiffs in reply denied the execution or delivery of the deed, alleged that it was a forgery, and denied the genuineness of the signature of John C. Linder. On these issues the case was tried to the court, resulting in a decree dismissing plaintiff's petition, and he or his widow and heirs, who have been substituted, appeal. Affirmed.Leggett & McKemey, of Fairfield, for appellants.
McNett & McNett and Chester W. Whitmore, all of Ottumwa, for appellees.
[1] The sole issue in the case is one of fact, and that is: Was the deed in question executed and delivered by John Linder before his death? On its face the deed purports to have been executed on the 29th day of May, 1903, and to have been acknowledged on the same day, before Edward R. Best, as notary public in and for Jefferson County, Iowa. It was not filed for record, however, until May 3, 1910, which was some days after the death of John Linder; he having departed this life on April 21, 1910, apparently seised of a fee-simple estate in the lands.
On the 20th day of April, 1910, deceased Linder made a will whereby he devised all his estate, both real and personal, subject to the share that his widow was by law entitled to, to Andrew Johnston, the plaintiff herein, and in the event of his death to his heirs. This will was duly admitted to probate and thereunder plaintiff claims title to all, save the widow's one-third of the land, now in controversy. The case has had a rather remarkable history and the record is very voluminous, and, although but a single ultimate question of fact is involved, there are many side lights of more or less importance which are unusual in character and difficult of satisfactory explanation. These things will appear as we proceed.
John Linder was the sixth husband of Harriet C. and at the time of his death had been married about nine years, although then living apart from his wife. He had no children; but his wife had three, the result of her first marriage to a man by the name of King. These children, or their successors, are defendants in this case. Harriet C. Linder acquired title to 400 acres of land in controversy through her third husband, Freeman Wright. Before her marriage to Linder, she had become much insolvent, and about two years before her sixth venture on the matrimonial seas she conveyed 437 acres of the land to E. A. Howard and J. E. Roth, who assumed and were to pay off all her liabilities, and who leased the land to Mrs. Linder at a yearly rental of $1,000, agreeing to reconvey, upon payment of $22,000, within two years from the date of the conveyance. Mrs. Linder did not make this payment and the matter ran along until January of the year 1901, when, having found a purchaser for the land, they served notice upon Mrs. Linder, then known as Mrs. Duncan, of their intention to forfeit the contract. This notice was served February 6, 1901.
John Linder was a farmer, then residing in Illinois, and about February 10th of the same year, pursuant to some correspondence between him and Mrs. Duncan with reference to her farm and also to a proposed marriage, appeared upon the scene, and February 20th of the year 1901 he (Linder) redeemed the land from Howard and Roth, paying them the sum of $22,000. This was done in the name of or with the consent of a Mrs. Ruddle, to whom Mrs. Duncan had assigned her right of redemption. Upon redemption being made, Howard and Roth conveyed the land to John Linder. On February 27th Linder and Mrs. Duncan were married and they immediately took up their residence upon the farm. From the beginning they had a stormy time of it, and in April of the year 1908 Mrs. Linder left her husband and began an action for divorce, * * *”
Upon taking his appeal from the decree in the divorce case, Linder applied to an agent of a surety company for a supersedeas bond and, in answers to questions as to his property, stated that he was the owner of the 498 acres of land in controversy, and upon the strength of his representations the surety company signed his bond, which it has since been compelled to pay.
The deed, under which defendants claim, was not filed for record until after the death of John Linder. Witnesses, expert and nonexpert, were examined on the part of each of the parties to the case, and the trial court limited the number of experts, which each might use, to six. Plaintiff used his full quota, but defendants used four only. In addition thereto, a large number of genuine signatures, made by John Linder at various times from the year 1901 down to the time of trial, were offered in evidence for comparison with the ones in dispute. Of the four experts used by the defendants, but one had even seen Linder write his name, and they gave their opinions from comparisons of the genuine with the disputed ones. Of plaintiffs' witnesses, three were well acquainted with Linder's signature and spoke of their own knowledge and belief. Six gave their opinions from comparisons, and one was a skilled expert, Marshall D. Ewell. Each and all of these testified that the disputed signatures were forgeries. If this were all, there could not be much question of plaintiffs' having made out a case.
[2] Aside from this is the fact that the deed in question purports to have been acknowledged by a notary public on the day it bears date, and this notary was a witness for the defendants. The law is well settled that, to impeach such a deed, the testimony must be clear, satisfactory, and convincing. It should amount to more than a preponderance in the balancing of probabilities and should by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent. Ford v. Ford, 27 App. D. C. 401, 6 L. R. A. (N. S.) 442, and note; N. W. Life Ins. Co. v. Nelson, 103 U. S. 544, 26 L. Ed. 436;Gritten v. Dickerson, 202 Ill. 372, 66 N. E. 1090;Blakesburg v. Burton, 137 N. W. 916. In addition to this, something like nine witnesses testified more or less directly to the making and delivery of the deed and of this number two, one the notary and another a neighbor, were disinterested, save perhaps as the notary was trying to establish a signature which purports to be his, upon a paper which is impressed with his seal. The other witnesses were, however, more or less interested. John Linder is dead, and of course his mouth was closed, but some support is claimed from declarations made by him regarding his failure to deed the land to Mrs. Linder's relatives. Were it not for this direct and positive testimony, we should have more trouble with the case than if it rested upon opinion testimony alone, and with it...
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