Johnston v. Linder
| Decision Date | 23 October 1913 |
| Citation | 143 N.W. 410,168 Iowa 441 |
| Parties | ANDREW JOHNSTON, Appellant, v. HARRIET C. LINDER et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, JANUARY 19, 1915.
Appeal from Jefferson District Court.--HON. C. W. VERMILION, 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, for appellant.
McNett & McNett and Chester W. Whitmore, for appellees.
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 seized 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 the land in controversy through her third husband, Freeman Wright.
Before her marriage to Linder, she had become much involved, 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 $ 1,000.00, agreeing to reconvey upon payment of $ 22,000.00, 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 $ 22,000.00. 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 alleging that the rightful ownership of the farm had really been in her all the time, and that he had agreed to convey it to her and her children at his death, but had failed and refused to do so. She caused a writ of attachment to be issued against his property and levied on the land. She procured an order for temporary alimony for $ 700.00 on the ground of his ownership in the land and his consequent ability to pay it and this amount was actually paid to the clerk by the husband. In December, 1908, the divorce case was tried and resulted in a dismissal of the charges and counter charges, the costs, including $ 900.00 attorneys' fees being taxed against the husband; and he was ordered to pay his wife $ 40.00 per month for separate maintenance. These amounts she had the court make a special lien on the lands in question. An appeal was taken by the husband and while the appeal was still pending, he met with an accident which ended his life, April 21, 1910. From the time she began the action for divorce in April, 1908, down to the time of his death the wife had lived apart from her husband. About one week after his death, she took possession of the farm and produced the deed which is in controversy in this case. It purports to have been executed May 29th, 1903, which was about two years after their marriage and more than five years before their separation. The divorce case had been bitterly contested in the district court, the trial occupying twelve days in which every possible claim and counter-claim as to the ownership of the land had been fought over. The wife contended that Mr. Linder promised before he married her, that the farm should go to her children at his death and that he had agreed to sign a paper which she said she had prepared to that effect, but that he had put her off until after they were married and then he absolutely refused to sign it. Her son, D. H. King, her daughter, Nancy Ruddle, and others testified to the same effect. Mr. Linder denied the entire transaction, said he had never made any such promises and that he had never seen the paper she produced, until it was brought into court; that he paid full value for the farm and $ 2,000.00 more than it was actually worth, and had never agreed to pay anything to his wife's children or that the farm would go to them.
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 non-expert, 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 defendants, but one had even seen Linder write his name and they gave their opinion 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 of these 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. 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 of the notary is untrue and fraudulent: Ford v. Ford, 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, 156 Iowa 671, 137 N.W. 916.
In addition, 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...
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