Kessler v. Terrell

• Decision Date: 15 November 1921
• Docket Number: No. 34099.,34099.
• Citation: 185 N.W. 15,192 Iowa 442
• Parties: KESSLER v. TERRELL.
• Court: Iowa Supreme Court

192 Iowa 442

185 N.W. 15

KESSLER

v.TERRELL.

No. 34099.

Supreme Court of Iowa.

Nov. 15, 1921.

Appeal from District Court, Mahaska County; Charles A. Dewey, Judge.

Action to quiet title to certain property. Defendant filed a cross-petition asking that the title to the said premises be quieted in him. The court dismissed the plaintiff's petition and entered a decree quieting the title in the defendant upon his cross-petition. Plaintiff appeals. Reversed.C. Ver Ploeg, of Oskaloosa, for appellant.

David S. David, of Oskaloosa, for appellee.

FAVILLE, J.

One Thomas Terrell, now deceased, was formerly the owner of the premises in controversy. The said decedent left a will and also executed a deed to the property in controversy. By the terms of both of said instruments, a life estate was created in the said real estate in one Laurana M. Terrell, with the remainder over in fee to the appellee, Thomas E. Terrell. At the time of the death of the said ancestor the appellee was a minor. He is a grandson of the said ancestor Thomas Terrell. After the death of the said ancestor, Thomas, his surviving children, including the father of the appellee, one Samuel S. Terrell, secured a deed from the life tenant, Laurana M. Terrell, conveying to the said children of Thomas Terrell, as tenants in common, her life estate in said described premises. The appellant herein is a daughter of the ancestor, Thomas, and an aunt of the appellee.

Appellee testified that he left Oskaloosa, where the property in question is situated, when about five or six years of age; that he never saw his grandfather's will nor the deed and first knew he had an interest in the property shortly before he became of age, which was in January, 1919.

It appears that some time in the fall of 1919 the various heirs of the ancestor, who had secured the deed from the life tenant, agreed among themselves to convey their interest in the premises to the appellant for a consideration of $1,900, $300 to be paid to each of the said parties, except Samuel, the father of the appellee, who was to receive $400.

It is appellant's contention that at the time of this arrangement, which, in the first instance, was oral, the understanding and agreement between appellant and Samuel was that the latter should be paid $400, and that the said Samuel was to undertake to secure from the appellee a quitclaim deed to his interest in the premises in controversy.

It is undisputed that appellant paid to Samuel the said sum of $400, and Samuel executed and delivered to the appellant a written instrument as follows:

“It is hereby understood that Lydia T. Kessler has this day purchased from Samuel S. Terrell and Thomas E. Terrell all the right, title, and interest in the north half of lot 1, block 3, Donahey's addition to the city of Oskaloosa, Iowa, for the sum of four hundred dollars ($400.00), as follows: $50.00 cash, receipt of which is hereby acknowledged and $350.00 balance when deed is delivered.

S. S. Terrell.

Paid in full October 11, 1919.

S. S. Terrell.”

The undisputed evidence, however, shows that all of these transactions to this point were carried on between the appellant and Samuel without the knowledge of the appellee. A quitclaim deed reciting a consideration of $1 was executed by Samuel and his wife and forwarded to the appellee at Cherokee by Samuel. The appellee signed said quitclaim deed and returned the same to his father, Samuel, who delivered said deed to the appellant and received from the appellant the said sum of $400. No part of this sum was ever paid to the appellee by the said Samuel.

Subsequently it was discovered that the said deed contained an erroneous description and did not convey the property in controversy. Whereupon a second deed was prepared, containing a correct description of the property, and forwarded to the appellee for signature. This deed the appellee refused to execute. Whereupon the action was brought by the appellant to quiet her title to the premises, and by cross-petition the appellee sought to quiet the title to said premises as against any claim of the appellant therein.

Appellee testified that at the time he signed the quitclaim deed which he received from his father he did not know what his interest was in the property in controversy, and that he never gave his father or any other person any authority whatever to dispose of his interest in the property in any manner.

It does appear from the evidence that in February, 1919, the appellee had written a letter to a party in Oskaloosa stating that he desired to dispose of his interest in the premises in controversy, but there is no showing that anything was done by the party receiving this letter or that the same came to the knowledge of the appellant in any way.

The father of the appellee testified that the agreement between him and the appellant was that he should be paid personally the sum of $400 for the execution and delivery of the quitclaim deed signed by himself and wife and the appellee. The evidence shows that he was paid the said $400 in checks that were made payable to said Samuel. He testified that there was nothing said between him and the appellant about paying anything to the appellee, and that he never did pay the appellee anything. He testifies that he forwarded the deed to the appellee and told him to sign and return it without mentioning any pay whatever.

The appellant testified that, when he received the deed in question from his father, the latter did not tell him what it was, but told him to sign it. He said:

“I read it and understood that it was the Thomas Terrell property in which I had an interest. I had been in correspondence with my father ever since I have been away from home, part of the time in regard to this property, and he told me what was going on. He wrote he was to get $400. ...