Maxwell v. McCall

• Decision Date: 10 February 1910
• Citation: 124 N.W. 760,145 Iowa 687
• Parties: J. M. MAXWELL, Plaintiff and Appellee, v. MARIE McCALL ET AL., Defendants and Appellants
• Court: Iowa Supreme Court

124 N.W. 760

145 Iowa 687

J. M. MAXWELL, Plaintiff and Appellee, v. MARIE McCALL ET AL., Defendants and Appellants

Supreme Court of Iowa, Des Moines

February 10, 1910

Appeal from Washington District Court.--HON. W. G. CLEMENTS, Judge.

THIS is an action to establish the right of plaintiff to an easement for road purposes over the real estate of the defendants. There was a decree for the plaintiff. The defendants appeal.

Affirmed.

Eicher & Livingston, for appellants.

C Thorne, for appellee.

OPINION

EVANS, J.

The defendant Marie McCall is the surviving widow of J. F McCall, deceased, who died without issue. The other defendants are collateral heirs and devisees under his will. The claim of the plaintiff is based upon a deed executed and delivered to him by J. F. McCall on March 21, 1895. The following is a copy of so much of the deed as is material for our present consideration: "Know all men that I. J. F. McCall, in consideration of the sum of $ 100 in hand paid by J. M. Maxwell do hereby grant, bargain, sell and convey unto the said J. M. Maxwell, his heirs and assigns, forever, the following described real estate situated in Washington County, Iowa, to wit: A strip of land for road purposes, forty feet in width described as follows, to wit: [Description.] Excepting and reserving the use and possession thereof so long as the grantor shall live, then full possession shall pass to the grantee. And the said grantor hereby warrants the title to said premises against the lawful claims of all persons whomsoever." This deed was duly acknowledged and recorded on the same day, and does not appear ever to have been called in question by the grantor. The circumstances surrounding the transaction were that McCall was the owner of a farm of one hundred acres abutting on the highway on the west side thereof, and Maxwell was the owner of a farm adjoining McCall's on the west, which had no access to any highway except over the land of McCall. For many years prior to the execution of the deed, and ever since, Maxwell had obtained access to the highway over the lands of McCall by mere permissive license. The traveled way, however, over which he had crossed McCall's land, was not upon the particular strip in dispute. Prior to the execution of the deed, Maxwell had presented a petition to the board of supervisors for the establishment of a public highway which would traverse McCall's land and which would give Maxwell access to this particular highway. As an adjustment of this matter between themselves, McCall executed the deed in question, and Maxwell abandoned the proceedings for the establishment of a public highway. After the execution of the deed, Maxwell built a dwelling and other valuable improvements upon his land in reliance thereon. At the time of the execution of the deed, the wife of McCall, the first-named defendant herein, was insane, and has so continued ever since, and she did not join in the conveyance. The farm in question was occupied by McCall and his wife as their home, and so continued down to the time of the death of McCall. The homestead "forty" had never been platted or designated in any way. The following is a plat of the premises, the McCall land being marked upon the plat, "J. F. M." The strip in dispute divides the land so as to leave forty acres on the north side thereof and sixty acres, including the dwelling, on the south side thereof:

[SEE PLAT IN ORIGINAL]

The strip in dispute had a market value of $ 60 or $ 70 per acre. The plaintiff did not in fact pay any money for the land, although the deed stated a consideration of $ 100. The prayer of the first count of the petition (which is the only count we will consider), is as follows: "Wherefore plaintiff prays that this plaintiff be ordered, adjudged, and decreed entitled to the possession of the premises described in the caption of this petition for road purposes, so long as the same shall be so used, with the privilege of erecting fences thereon, and maintaining the same as a highway; that defendants and each of them be ordered to yield immediate possession of said premises to this plaintiff; and for such other and further relief as may be deemed just and equitable in the premises; and that the defendants be adjudged to pay the cost of this proceeding." The issue made by the answer was that the premises described in the deed were a part of the homestead occupied by the grantor and his wife, and that such deed was not signed by the wife, and was therefore absolutely void and of no effect. The decree entered below established the right of the plaintiff to an easement over such strip for road purposes, and decreed the title in the defendants, subject to such easement until said strip should cease to be used for road purposes.

I. The real question in the case is whether the instrument set up by plaintiff should be construed as a deed purporting to convey the fee title, or whether it should be construed as an instrument merely purporting to convey a right of way over the land. If the former, then it would be void under the law in force in 1895. Barnett v. Mendenhall, 42 Iowa 296; Goodrich v. Brown, 63 Iowa 247, 18 N.W. 893; Woolcut v. Lerdell, 78 Iowa 668, 43 N.W. 609; Townsend v. Blanchard, 117 Iowa 36 at 39, 90 N.W. 519; Ormsby v. Graham, 123 Iowa 202 at 212, 98 N.W. 724; Wheelock v. Countryman, 133 Iowa 289, 110 N.W. 598. If the latter, then the instrument was valid for the purpose of granting an easement in the plaintiff, even though not signed by the wife. Chicago & S.W. R. Co. v. Swinney, 38 Iowa 182; Ottumwa v. McWilliams, 71 Iowa 164, 32 N.W. 315; Harkness v. Burton, 39 Iowa 101; Stokes v. Maxson, 113 Iowa 122, 84 N.W. 949. See, also, Orrick v. City of Ft. Worth (Tex. Civ. App.) 32 S.W. 443; Randall v. R. R. Co., 63 Tex. 586; Railroad Co. v. Titterington,c 84 Tex. 218 at 225 (19 S.W. 472, 31 Am. St. Rep. 39).

In so far as the deed may be deemed ambiguous in its terms, the circumstances surrounding the transaction may be considered for the purpose of ascertaining the intent of the parties. Barlow v. C., R. I. & P., 29 Iowa 276; Uhl v. Ohio, 51 W.Va. 106 (41 S.E. 340). It is also a general rule that a construction which gives validity to the instrument will be preferred over a construction which defeats its validity. Barlow v. C., R. I. & P., supra; Marshall v. McLean, 3 Greene 363.

In the case of Ottumwa v. McWiliams supra, the contract under consideration was as follows: "In consideration of one dollar in hand paid and I, for myself, and for my heirs, executors, and assigns, do hereby covenant and agree to and with said railroad company to convey, by metes and bounds, at any time the said railroad company shall call for the same, by deed in fee simple, a strip of ground not less than fifty feet in width on each side of the center of the track of said railroad, over and through the above-described land." In the Barlow case, supra, the granting clause was as follows: "Do hereby grant and convey the said railroad company the following piece or tract of land in Polk County, in the state of Iowa, and particularly described as follows, to wit, a strip of land through the southwest quarter of," etc. We quote from the opinion in the latter case: "When we take into consideration the situation of the parties to the deed at the time it was made, and the property which is the subject matter of their contract, and the intention and purpose of the parties in making it, together with the language of the entire deed, we have but little difficulty in construing the deed, as a conveyance of a right of way simply. . . . But, further than this, there is another rule of construction which requires that the contract should be supported rather than defeated; that is, a construction which would make the contract legal is preferred to one...