Kindred v. Crosby, 49864

• Decision Date: 15 December 1959
• Docket Number: No. 49864,49864
• Citation: 251 Iowa 198,100 N.W.2d 20
• Parties: E. R. KINDRED, Plaintiff-Appellee, v. Mildred A. CROSBY, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 20

100 N.W.2d 20

251 Iowa 198

E. R. KINDRED, Plaintiff-Appellee, v. Mildred A. CROSBY, Defendant-Appellant.

No. 49864.

Supreme Court of Iowa.

Dec. 15, 1959.

Richard A. Strickler, Des Moines, for defendant-appellant.

Irish & Haughey, Des Moines, for plaintiff-appellee.

THOMPSON, Justice.

On March 28, 1938, the plaintiff and one Scott Crosby, also known as Bonny S. Crosby, were owners of real estate in Polk County described as: 'Lot One (1) U. S. S., all West Half (W 1/2) South of River, Section Three (3), Township Eighty (80), Range Twenty-five (25) West of the Fifth P. M., Iowa.' On this date Crosby executed a quitclaim deed of his interest in the realty, with the name of the grantee blank, and delivered it to the plaintiff. The deed was not recorded until December 19, 1957.

On December 11, 1953, Bonny S. Crosby, with his then wife, Mildred A. Crosby, the defendant herein, executed and delivered a joint tenancy deed of the same interest to Bonny S. Crosby and Mildred A. Crosby. This deed was recorded on December 14, 1953. Crosby died during the month of October, 1956, and the defendant now claims to be the owner of an undivided one-half interest in the real estate above described by virtue of the deed last referred to.

It is evident that the case turns upon the priority of the two deeds: the first, delivered to the plaintiff, but not of record when the second deed was executed creating the joint tenancy and recorded. The defendant, as appellant here, makes in substance two contentions: the first deed was invalid because the name of the grantee was not filed in when it was delivered; and second, she is an innocent purchaser for value without notice of the prior unrecorded conveyance. The trial court found all issues with the plaintiff.

I. It is not disputed that Crosby executed the first deed in the presence of plaintiff, and delivered it to him. And it is conceded by the plaintiff that the name of the grantee was not filled in at the time of execution and delivery. He testifies that his own name was filled in as grantee, by his authority, shortly before the deed was recorded in 1957. But we think this avails the defendant nothing. The law is well settled in Iowa that equitable title passes by the delivery of a deed which leaves the name of the grantee blank. In Gilbert v. Plowman, 218 Iowa 1345, 1348, 256 N.W. 746, 748, we said: 'It has long been held in this state that authority to a grantee to fill a blank in a deed is implied when the grantor delivers the deed fully executed in other respects.' See also Augustine v. Schmitz, 145 Iowa 591, 124 N.W. 607, and Hall v. Kary, 133 Iowa 465, 110 N.W. 930, 119 Am.St.Rep. 639. Several earlier authorities are cited in the last named case. The question is so well settled that we shall not devote further attention to it. Defendant's contention at this point is without merit.

II. Defendant's further reliance is upon her claim that when she received the deed creating a joint tenancy between herself and her husband, Bonny S. Crosby, she had no notice of the earlier unrecorded deed and so became a purchaser for value and entitled to priority under Section 558.41 of the Code of 1958, I.C.A., which has appeared in substantially identical form in the Iowa law for many years past. She denies any knowledge of the existence of the unrecorded deed under which the plaintiff claims, and testifies that she paid her husband $200 for the execution of the joint tenancy deed upon which her rights rest.

It cannot be disputed that a bona fide purchaser for value without notice of an existing unrecorded conveyance obtains priority. But there are some things a claimant to such priority must do before it will be upheld in the courts of Iowa. First, he must plead and prove his status as such purchaser. In Young v. Hamilton, 213 Iowa 1163, 240 N.W. 705, the question was discussed at length. Certain Iowa cases holding that the burden of proof is upon the holder of the unrecorded instrument were overruled, and we concluded: 'Plaintiff had the burden of pleading and proof that he was a subsequent purchaser for valuable consideration without notice.' See at page 1173 of 213 Iowa, at page 710 of 240 N.W. In 107 A.L.R. annotations, pages 503, 504, Iowa is listed among the jurisdictions which place the burden of proof to show good faith upon the party claiming to be a purchaser without notice, and many Iowa cases, including Young v. Hamilton, supra, are cited. At pages 513, 514 of the same volume is this: 'In accord with the general rule * * * the numerical weight of authority is to the effect that one claiming to be a bona fide purchaser as against the holder of a prior unrecorded conveyance or encumbrance has the burden of showing that he paid a valuable consideration for the conveyance to him, and this by other evidence than the recitals in the deed.' Iowa cases are again cited as following this rule.

An examination of the record shows that the defendant here has failed to carry the burden required of her. Her answer is no more than a general denial of the material allegations of plaintiff's petition in equity praying that title be quieted in him. She has not met the first requirement, that she plead her status as a purchaser for value without notice.

Nor do we think she has carried the burden of proof. Her testimony is that she paid $200 in cash for the survivor deed. On cross-examination she was asked where she obtained the money, and she said she had saved it in small amounts while she was employed in Omaha...