Jones v. Betz

• Decision Date: 16 November 1926
• Docket Number: 37378
• Parties: RENNIE JONES et al., Appellees, v. MAGGIE BETZ et al., Appellants
• Court: Iowa Supreme Court

210 N.W. 609

203 Iowa 767

RENNIE JONES et al., Appellees, v. MAGGIE BETZ et al., Appellants

No. 37378

Supreme Court of Iowa, Des Moines

November 16, 1926

OPINION ON REHEARING APRIL 7, 1927.

Appeal from Polk District Court.--W. S. COOPER, Judge.

An action in equity to set aside a deed. From a decree by the district court of Polk County granting the relief prayed defendants appeal.

Reversed.

Hughes Taylor & O'Brien, for appellants.

Edwin J. Frisk and C. B. Hextell, for appellees.

ALBERT J. STEVENS, VERMILION, and MORLING, JJ., concur.

OPINION

ALBERT, J.

Anna Ryan was the second wife of P. H. Ryan. In the year 1919 or 1920, she was taken to the hospital for the insane at Clarinda, where she remained until the time of her death, on the 25th day of March, 1921. Her husband, P. H. Ryan, who was at one time a practicing attorney in the city of Des Moines, many years prior to his death suffered a paralytic stroke, from which he largely lost the use of his lower limbs, and was compelled to move around on crutches during the remainder of his life, which ended November 4, 1922.

At least until the 25th day of March, 1901, Anna Ryan was the owner in fee of Lot 7 in Block 5 in Holcomb's Addition to the city of Des Moines. On this lot were five houses, in one of which the Ryans lived, and the others were rented. On the above date, said Anna Ryan executed and acknowledged a warranty deed for the aforesaid lot, naming her husband, P. H. Ryan, as grantee therein; and the only question in the case is whether or not this deed was ever delivered to P. H. Ryan. At the time of the bringing of this action, both Anna and P. H. Ryan were dead, and the appellees herein are the heirs and legal representatives of P. H. Ryan. So far as we learn from the record, both Anna and P. H. Ryan died intestate.

It is shown beyond dispute in the record that, after the death of Anna Ryan, P. H. Ryan took this deed and had it duly recorded in the deed record of Polk County, Iowa. Appellees, being plaintiffs in the action, assert the non-delivery of the deed, and have the burden of proof of establishing this allegation.

It is too well settled to require citation of authorities that, to make a warranty deed effective, it must be delivered. It is also well settled that, where a deed is signed, acknowledged, and recorded, it is presumed to have been properly delivered; but, of course, this presumption is a rebuttable one. Savery v. Browning, 18 Iowa 246; Robinson v. Gould, 26 Iowa 89; Webb v. Webb, 130 Iowa 457, 104 N.W. 438; Stiles v. Breed, 151 Iowa 86, 130 N.W. 376; Burch v. Nicholson, 157 Iowa 502, 137 N.W. 1066; Tucker v. Glew, 158 Iowa 231, 139 N.W. 565; Sederquist v. Peterson, 194 Iowa 1290, 191 N.W. 101; Johnson v. Lavene, 196 Iowa 471, 192 N.W. 885. Among the above cases, the Webb case and the Stiles case were cases where the deed was recorded after the death of the grantor. It is equally well settled in this state that the plaintiff has the burden of showing non-delivery by clear and satisfactory proof. Davis v. Hall, 128 Iowa 647, 105 N.W. 122; Burch v. Nicholson, supra; Johnson v. Lavene,supra. Plaintiffs herein, therefore, have the burden, even though the recording was after the death of grantor, of overcoming the presumption aforesaid by clear and satisfactory proof, and the only question before us is whether or not this quantum of proof has been furnished by appellees.

Gray, a neighbor of the Ryans', testifies that he had known them for 30 years; that he was at their house after the death of Anna. He at one place in his testimony says that it was at the invitation of P. H. Ryan, and at another, that he called to express his sympathy, and to visit Mr. Ryan; that, when he entered the house, P. H. Ryan had a box or trunk, and part of the contents was dumped on the floor, and witness started to help Ryan look over the papers. Witness's description of the contents of the box is very indefinite. He says:

"I didn't pay much attention to the stuff, but among the papers and letters we finally came across the deed. As to who discovered this deed has never been settled in my mind. I don't know what I was looking for, but when that deed was brought up, it got into my hands. Either he picked it up or I did. That was never straight in my mind. Ryan said, 'That was the deed. I will take it and record it.'"

Witness took Ryan down to the courthouse, and he (Ryan) had the deed recorded himself. He says there were two or three pieces of jewelry in this receptacle; that he thought one was a lady's ring, and the other a necklace; that there were also letters in this receptacle, but the witness does not know to whom the letters were addressed.

This witness was further permitted to testify that he had talks with Mrs. Ryan about this property at different times during the five years prior to her death, and that she said or always claimed that the property was hers. When asked to tell the conversation, witness answered:

"Well, she just remarked about the property. It was hard for her to pay the taxes and keep it up, but that she would get through with it all right, or something to that effect."

This testimony was all objected to because irrelevant and immaterial and calling for a statement or admission by the grantor which is incompetent under any circumstance.

Vinnie Tobin testified that, during the time from 1912 to 1917, she was a tenant in one of these houses; that Mrs. Ryan always collected the rent from her. This witness also testifies that Mrs. Ryan talked to her, on different occasions between 1912 and 1917, and that the substance of the conversation every time was that Mrs. Ryan told the witness that the property belonged to her. This testimony was objected to on the same ground as the objection to similar testimony by the witness Gray. Witness further says that Mrs. Ryan at one time, which witness is unable to fix, stated that "they tried to get her to deed the property to the church, but she would not do it." (Ryan was a member of the Catholic church, and Anna was not.) This statement was also objected to. Witness further says that she does not know approximately when the statement was made, but that it was before witness moved into the Ryan house, and while P. H. Ryan was in the hospital.

Witness Potter, an employee of the treasurer's office of Polk County, testifies that, back as far as the year 1915, to and including March 12, 1921, the tax receipts issued on this property were made to Anna Ryan.

Lillian M. Diehl testifies that her father's business was paper hanging and painting; that she kept books for him, and collected for his services; that he worked on these different houses on this lot; and that Mrs. Ryan ordered the work done, and paid the bills personally.

Mrs. Francis Hawkins testifies that she lived across the street from the Ryan property, and that Mrs. Ryan took care of the property all the time; that she did not know who collected the rent or paid the taxes.

Rennie Jones, a niece of Anna Ryan's, produced certain letters written by Anna Ryan, which were introduced in evidence. The first one was written in 1906, and contains nothing of importance bearing on the issues in this case, and at most seems to contain an expression of dissatisfaction with several of the relatives of P. H. Ryan. The next one was written on April 24, 1910, and the material part is the...