McGee v. Allison
| Decision Date | 16 May 1895 |
| Citation | 63 N.W. 322,94 Iowa 527 |
| Parties | FRANCES MCGEE v. RICHARD F. ALLISON AND LAWRENCE ALLISON, Appellants |
| Court | Iowa Supreme Court |
Appeal from Winneshiek District Court.--HON. L. O. HATCH, Judge.
Suit in equity to quiet plaintiff's title to lot 6, block 20, in the city of Decorah, Iowa and to set aside and cancel certain deeds covering the property from W. W. McHenry and wife to Lawrence Allison, and from Lawrence Allison to his codefendant, Richard F. Allison. It is alleged in the petition that the deed from the McHenrys to Lawrence Allison in so far as it covers the property in controversy, is a forgery; that it was never delivered; that no consideration was ever paid therefor; and that, at the time of its execution, W. W. McHenry was of unsound mind, and incapable of executing the same. The trial court found that the deed was never delivered, and granted to plaintiff the relief demanded, and defendants appeal.
Reversed.
G. R Willett for appellants.
L Bullis for appellee.
Plaintiff is the daughter and sole heir at law of W. W. McHenry, who departed this life in November, 1889. McHenry was twice married, and plaintiff is the sole issue of his first marriage. He left, surviving him, Charlotte L. McHenry, his widow, who was a sister of the defendants Allison. After the husband's death, the widow continued to possess and occupy the property in controversy, which was their homestead, until her death, which occurred May 4, 1892. On the seventh day of May, 1892, the defendant Lawrence Allison caused to be filed for record with the recorder of Winneshiek county a deed from W. W. McHenry and Charlotte L. McHenry, his wife, purporting to be executed and acknowledged on the twelfth of December, 1887, conveying the property in controversy, with other lots and land, to Lawrence Allison. Afterward, and on May 9, 1892, Lawrence Allison conveyed the property in controversy, by quitclaim deed, to his codefendant, Richard Allison. This deed was filed for record on May 14, 1892. Shortly after the death of W. W. McHenry, and in February of the year 1890, plaintiff filed a petition in probate, in which she recited that she was the sole and only heir of W. W. McHenry, and that Charlotte L. McHenry was his widow; that W. W. died seized of the property in controversy, and asked that C. L. McHenry be required to make an election as to which she would take,--homestead or dower in the premises. C. L. McHenry answered this petition by an election to take the property for life as a homestead, in lieu of her distributive share, and a decree was entered in accord with election. Administration was not had, however, upon the estate of W. W. McHenry, deceased. Immediately upon the death of the widow, the defendants took possession of the homestead under the deeds above set forth, and plaintiff thereupon commenced this action to quiet her title and set aside the deeds held by the defendants.
It is first insisted that the deed from McHenry and wife to Lawrence Allison, in so far as it covers the homestead in question, is a forgery. The deed covers various lots and parcels of land other than that in dispute, which were in the name of Charlotte L. McHenry; and it is claimed that the description covering the land in question was added to the deed after its execution and delivery by the McHenrys, and that it does not convey the homestead. That part of the description said to be a forgery is written in a different colored ink from that in the main body of the deed, and an alteration is apparent in this description. The alteration appearing upon the deed is fully explained by the scrivener who drew it, and he also explains how the writing appears in different colors in a fairly satisfactory manner. The only testimony relied upon to show the alleged alteration is from experts, some of whom were of the opinion that the description covering the premises in dispute was written after the main body of the deed, and certain other circumstances which it is claimed have a tendency to show that the deed is a forgery. The question as to what effect an apparent alteration of a written instrument has with reference to the burden of proof has recently undergone extended examination at the hands of this court in the case of Hagan v. Insurance Co., 81 Iowa 321, 46 N.W. 1114. It is there held that an alteration apparent upon the face of a writing raises no presumption that it was made after delivery and without authority, and that the burden is not upon him who relies upon the instrument to explain the alteration, but upon him who attacks it to prove that the alterations were made after delivery and without authority. We need not do more than apply this rule to the facts of this case. When this is done, it is manifest that plaintiff has failed to establish the alleged forgery.
II. It is next insisted that the deed to Lawrence Allison was never delivered to or accepted by him with intent to make it effectual, and that he never paid any consideration therefor. Delivery of a deed is, of course, essential to its validity; and, to constitute such delivery, there must ordinarily be, not only a manual change of possession, but an intention on the part of the grantor to make it operate as such, and an acceptance on the part of the grantee as well. It is well settled, however, that, if a deed fully executed is found in the possession of the grantee, it is presumed to have been delivered by the grantor, and accepted by the grantee, at the date of its execution. Wolverton v. Collins, 34 Iowa 238; Craven v. Winter, 38 Iowa 471. This presumption is not conclusive, but it raises a strong implication, which can only be overcome by clear and satisfactory proof. Tunison v. Chamblin, 88 Ill. 378. Such a rule is necessary to the security of titles. Any other would render all holdings uncertain, and would be disastrous in the extreme.
In this case we not only find the deed to the lot in question in the possession of the grantee, but we have affirmative testimony from three witnesses that it was delivered to him by the grantor, through his agent, the scrivener who wrote it. As against this, the appellee relies upon circumstantial evidence which she claims points to the conclusion that the deed was surreptitiously obtained by the grantee and his brother, C. W. Allison, after the death of Mrs. McHenry. It is unnecessary that we set out the testimony relied upon. It is sufficient to say that nearly all these collateral facts with reference to the delivery of the deed can be explained upon a theory perfectly consistent with a delivery of the deed. Such being the case, the presumption arising from the possession of the deed in the grantee is not overcome. ...
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