Kibby v. Harsh

• Decision Date: 09 June 1883
• Citation: 61 Iowa 196,16 N.W. 85
• Parties: KIBBY AND OTHERS v. HARSH AND OTHERS.
• Court: Iowa Supreme Court

61 Iowa 196

16 N.W. 85

KIBBY AND OTHERS

v.HARSH AND OTHERS.

Supreme Court of Iowa.

Filed June 9, 1883.

Appeal from Shelby district court.

On the twenty-sixth day of June, 1880, the defendants W. P. Kimball and Clara Kimball, his wife, conveyed 160 acres of land in Shelby county, by deed of warranty, to George Kibby. Kibby died intestate on the twenty-second day of September, 1881, and said conveyance was not filed for record until after his death. On the fourth day of October, 1881, the defendants W. P. Kimball and Clara Kimball made another deed of warranty of the land to the defendant I. M. Harsh. This last deed was filed for record on the fifteenth day of October, 1881, and the deed made to Kibby was filed on the same day, but about two hours after the filing of the deed to Harsh. This action was brought by the widow and children of Kibby to set aside and cancel the deed made to Harsh, upon the ground that the same was fraudulent and without consideration. The defendants, by their answer, averred that the deed made by Kimball to Kibby was intended by the parties thereto to be a mere mortgage or security for the payment of money owing by Kimball to Kibby. It was further averred by Harsh that he was an innocent and good-faith purchaser of the land for value, and that at the time of the delivery of the deed to him he had no notice, either actual or constructlve, of the existence of the deed to Kibby. Harsh also charged in his answer that the deed to Kibby was fraudulent, and was made to hinder, delay, and defraud the creditors of Kimball. The cause was tried in the court below upon written evidence in the form of depositions, and a decree was entered for the plaintiffs, from which the defendants appeal.Smith & Cullison, for appellants.

Macy & Gammon and Platt Wicks, for appellees.

ROTHROCK, J.

1. It is alleged in the petition that the plaintiffs are the heirs at law of George Kibby, deceased, and the owners of the land in controversy. The answer contains an allegation in these words: “That as to whether the plaintiffs are the heirs and only heirs of George Kibby [the defendants] have not sufficient knowledge or information whereof to form a belief.” The first point made in the argument of counsel for appellants is that there is no evidence that the plaintiffs are the heirs and only heirs of Kibby. It is true, it is not affirmatively shown that all the plaintiffs are the children of Kibby. But it is shown that Julietta Kibby, one of the plaintiffs, is his widow, and that the plaintiffs George Kibby and L. D. Kibby are his sons. Now, while it is true that the record contains no formal proof that the other plaintiffs are children of the intestate, yet we think that this decree should not be reversed for that reason. Whether the question of the failure to make strict proof that the other plaintiffs...