Keating v. Augustine

• Decision Date: 08 March 1932
• Docket Number: No. 41204.,41204.
• Citation: 213 Iowa 1336,241 N.W. 429
• Parties: KEATING ET AL. v. AUGUSTINE.
• Court: Iowa Supreme Court

213 Iowa 1336

241 N.W. 429

KEATING ET AL.

v.AUGUSTINE.

No. 41204.

Supreme Court of Iowa.

March 8, 1932.

Appeal from District Court, Mahaska County; J. G. Patterson, Judge.

Action in equity to set aside a deed. The trial court dismissed plaintiffs' petition. The plaintiffs appeal. The facts appear in the opinion.

Affirmed.W. H. Keating, of Oskaloosa, and C. H. E. Boardman, of Marshalltown, for appellants.

McCoy & McCoy, of Oskaloosa, for appellee.

GRIMM, J.

Mary J. Spates, who will hereinafter, for brevity, be designated as the “grantor,” and who died in Mahaska county, Iowa, some time in midsummer of 1931, had lived in that county for many years. It appears that she was divorced in 1927. She was a soldier's widow and received a pension.

The storm center of this litigation is a transaction which took place on the 25th day of January, 1929, when the grantor executed a deed for 80 acres of her land in favor of the defendant, J. D. Augustine, her nephew. At that time, she was the owner of 240 acres of land in Mahaska county. One hundred sixty acres of this land was in a square quarter section. The 80 acres in controversy lay north of the quarter section. That is to say, the west 40 of the 80 acres in controversy adjoined the quarter section on the north and the east 40 of the 80 acres cornered on the northeast corner of the quarter section.

During all the time material to this controversy, the grantor lived in town and her land was rented and operated by the defendant and his father.

It appears that in addition to the 240 acres of land, the grantor had accumulated about $22,000 in moneys and credits, much of which was loaned to residents of Oskaloosa and the surrounding territory.

After her divorce, the grantor lived alone. She had four brothers and one sister. She had about twelve nieces and nephews. She testified that her father was induced to make a will in which her brothers received the property, and in retaliation therefor, she determined to pass all her property to her nieces and nephews.

Prior to the date of the deed in controversy, the grantor had made a will, in substance distributing all of her property in equal shares to all of her nieces and nephews, of which the defendant is one. Prior to the date of the deed, the grantor had sent word, at various times, by some relatives, that she wished to see “John,” the defendant, at her home. He finally responded to the call, and the result of the conference was that the defendant was directed to bring one David S. David, an Oskaloosa attorney, to the home of the grantor for the purpose of enabling the grantor to execute and deliver a deed to the 80 acres of land, hereinbefore referred to, to John D. Augustine, the defendant. Mr. David and the defendant appeared at the grantor's home, and the deed was executed and delivered to Mr. David for the defendant, to be recorded by Mr. David when he learned of the grantor's death. Subsequently, some of the other nieces and nephews received information that this deed had been executed, whereupon a guardian was promptly appointed for the grantor, based upon the allegation that “she, the grantor, is now past 80 years of age and because of this fact and her other physical infirmities, she desires that the court appoint W. H. Keating as her guardian to look after her property, real and personal, and transact all her business of every kind and nature.”

Thereafter, the guardian made demand for the deed and it was refused, whereupon this action was brought. A trial was had and the lower court dismissed the plaintiffs' petition.

I. One of the principal contentions on behalf of the appellant is that there was never a sufficient delivery of the deed, therefore it never became effective. The question whether there has been a sufficient delivery of a deed has been before this court many times. The principles have been so often discussed and announced that we deem it wholly unnecessary to review our cases at this time. It is sufficient, for the purposes of this case, to quote very briefly from a few of our later cases on the subject.

In Matheson v. Matheson, 139 Iowa, 511, loc. cit. 514, 117 N. W. 755, 757, 18 L. R. A. (N. S.) 1167, this court said: “It is an elementary proposition in the law of deeds that the delivery to a third person for the grantee without any reservation by the grantor of a right to recall it is sufficient in law, and effects a complete transfer of the title to the property which is the subject of the conveyance. * * * Where a deed or instrument purporting to convey valuable property and creating no obligation or burden to be assumed by the grantee is delivered to the manual possession of the grantee himself or to some third person for such grantee's benefit, his acceptance is presumed until the contrary is shown.”

In Kyle v. Kyle, 175 Iowa, 734, 157 N. W. 248, 249, this court said: “That delivery is essential to the effectiveness of a deed to real estate is elementary, but just what amounts to a delivery is sometimes a question of doubt. Ordinarily it is the simple transfer of possession of the written instrument from the grantor to the grantee with intent on part of the grantor to convey and on part of the grantee to acquire title to the property described therein. But an actual manual transfer of the paper is not necessary. A delivery may be effected by acts without words, or by words without acts, or by both words and acts. Assuming the instrument to have been properly executed ready for delivery, acts and words evincing intent to part with it and relinquish the grantor's right over it is a sufficient delivery. Whiting v. Hoglund, 127 Wis. 135, 106 N. W. 391, 7 Ann. Cas. 224;Woodward v. Woodward, 4 Halstead's Ch. [8 N. J. Eq.] 779, 784. It may be made direct to the grantee or to a third person in his behalf. Owen v. Perry, 25 Iowa, 412, 96 Am. Dec. 49; Clarity v. Sheridan, 91 Iowa, 304, 59 N. W. 52;Adams v. Ryan, 61 Iowa, 733, 17 N. W. 159;Matheson v. Matheson, 139 Iowa, 511, 514, 117 N. W. 755, 18 L. R. A. (N. S.) 1167. In final analysis, it may be said that delivery is a matter of intent, and any distinct act or word by the grantor with intent to pass the title to the grantee by transferring the deed to him or to another for his benefit is a delivery. Collins v. Smith, 144 Iowa, 200, 203, 122 N. W. 839;Kneeland v. Cowperthwaite, 138 Iowa, 193, 194, 115 N. W. 1026;Schurz v. Schurz, 153 Iowa, 187, 190, 128 N. W. 944, 133 N. W. 683;Criswell v. Criswell, 138 Iowa, 607, 609, 116 N. W. 713. It is also well settled in this and other states that a deed duly executed and deposited with a third person with directions to deliver it to the grantee upon the death of the grantor is an effective conveyance; that such a deed vests the grantee with the title, but his right to possession and enjoyment is postponed until the grantor's death. In such case the delivery which the law requires to make a deed legally effective is complete when the deed is placed in the hands of the depositary; but it does not become effective for the purposes of possession and enjoyment of the property until the time comes for the secondary delivery by the person to whose keeping it has been intrusted.”

In Goodman v. Andrews, 203 Iowa, 979, loc. cit. 981, 213 N. W. 605, 606, this court said: “The intent of the grantor is of controlling importance in the question of delivery of a deed; and it is well settled that, where a deed duly executed by the grantor is deposited by him in the hands of a third person, with direction to deliver it to the grantee or place it of record on the death of the grantor, and there is no reservation of a right to recall it, there is a sufficient delivery. Hinson v. Bailey, 73 Iowa, 544, 35 N. W. 626, 5 Am. St. Rep. 700;Trask v. Trask, 90 Iowa, 318, 57 N. W. 841, 48 Am. St. Rep. 446;White v. Watts, 118 Iowa, 549, 92 N. W. 660;Dettmer v. Behrens, 106 Iowa, 585, 76 N. W. 853, 68 Am. St. Rep. 326;Everts v. Everts, 120 Iowa, 40, 94 N. W. 496;Albrecht v. Albrecht, 121 Iowa, 521, 96 N. W. 1087;Foreman v. Archer, 130 Iowa, 49, 106 N. W. 372;Criswell v. Criswell, 138 Iowa, 607, 116 N. W. 713;In re Estate of Bell, 150 Iowa, 725, 130 N. W. 798;Kyle v. Kyle, 175 Iowa, 734, 157 N. W. 248;Bradley v. Bradley, 185 Iowa, 1272, 171 N. W. 729;Lathrop v. Knoop, 202 Iowa, 621, 210 N. W. 764.”

In Davis v. John E. Brown College, 208 Iowa, 480, 222 N. W. 858, many of our cases on this subject are collected and commented upon.

Measured by the foregoing yardsticks, we are to determine whether there was in this case an execution and delivery of the deed. It satisfactorily appears in the record that some time prior to the 25th day of January, 1929, the grantor sent word by at least two of the relatives that she wished to see “John,” the defendant, at her home. This is undenied. The first of these messages was approximately a week before the day the instrument was executed. The defendant finally called at the home of the grantor on the afternoon of January 25, 1929. The grantor, before and after the execution of the deed, had explained at various times to various parties that the defendant was her favorite nephew; that he had been very kind to her. He had not only granted many favors to her in the matter of assisting her in managing her farm property, but he had been kind to her in and about the home and in the matter of taking her from place to place, at times, and in many other ways. She at times called him “her boy.”

During the course of the conversation between the grantor and the defendant, of the afternoon above referred to, the grantor recited many of these facts to the defendant and told him she wished to convey 80 acres of land to him. She suggested that Mr. David be brought to the house for the purpose of making the deed and closing the transaction.

Without going too much into detail, we may say that with the information thus obtained from the grantor, the defendant called on Mr. David and a deed was prepared. There...