Leaver v. Gauss

• Decision Date: 08 December 1883
• Citation: 62 Iowa 314,17 N.W. 522
• Parties: LEAVER v. GAUSS.
• Court: Iowa Supreme Court

62 Iowa 314

17 N.W. 522

LEAVER

v.GAUSS.

Supreme Court of Iowa.

Filed December 8, 1883.

Appeal from Plymouth circuit court.

Action to remove a cloud from the plaintiff's title, and to quiet the same. The plaintiff avers that he is the owner of the real estate in question, but that the defendant makes some claim to it. He admits that he and his wife Heinricke Leaver, executed to the defendant an instrument somewhat in the' form of a deed, but he avers, in substance, that it was to take effect only after the death of himself and wife, and that it was therefore testamentary in its character, and he now desires to revoke and cancel the same. He sets out a copy of it as an exhibit annexed to his petition. The defendant, for answer, denies that the instrument is testamentary in its character, and avers that it was executed for a valuable consideration paid by him to the plaintiff, and was intended to convey to the defendant an estate in the premises which should be absolute upon the death of the plaintiff and his wife. He admits that the copy of the instrument set out by the plaintiff is correct, from which it appears that, after containing words purporting to convey the premises in the usual form of a deed, it contains also the following: “To commence after the death of both the said grantors;” and also the following: “It is hereby understood and agreed between the grantors and the grantee that the grantee shall have no interest in the said premises as long as the said grantors, or either of them, shall live; and that, after the death of both the said grantors, the grantee shall have and hold the premises by fee-simple title.” To the answer the plaintiff demurred, and the demurrer was sustained; and, the defendant, electing to stand upon his answer, judgment was rendered for the plaintiff. The defendant appeals.Struble, Rishel & Sartori, for appellant.

C. Gottschalk and Argo & Kelly, for appellee.

ADAMS, J.

The instrument purports to have been executed in consideration of love and affection. The answer avers that it was executed in consideration of the payment by the defendant of certain indebtedness due from the plaintiff. If such fact could properly be pleaded as against the instrument, it must be deemed admitted by the demurrer. The defendant relies largely upon this fact to support his position, that the instrument was not testamentary in its character, but immediately operative and binding upon the property. He insists that the...