Partello v. White

• Citation: 196 N.W. 719,197 Iowa 24
• Decision Date: 08 January 1924
• Docket Number: No. 35104.,35104.
• Parties: PARTELLO v. WHITE ET AL.
• Court: United States State Supreme Court of Iowa

197 Iowa 24

196 N.W. 719

PARTELLO

v.WHITE ET AL.

No. 35104.

Supreme Court of Iowa.

Jan. 8, 1924.

Appeal from District Court, Palo Alto County; D. F. Coyle, Judge.

This is an action to enforce a contract for the devise of a farm. From a decree for the plaintiff the defendants, except the executor and executrix of the estate of Dwight J. Partello, Sr., appeal. Affirmed.McCarty & McCarty, of Emmetsburg, and Offutt & Imlay, of Washington, D. C., for appellants.

Peelle & Ogilby, of Washington, D. C., and Thos. O'Connor, of Emmetsburg, for other defendants.

Deacon, Sargent & Spangler, of Cedar Rapids, Good, Childs, Bobb & Westcott, of Chicago, Ill., and E. A. & W. H. Morling, of Emmetsburg, for appellees.

VERMILION, J.

Dwight J. Partello, Sr., was for many years prior to his death in the consular service of the United States government stationed in various cities in Germany, and later was an agent of the United States Treasury in Berlin. He was a man of culture, interested in music, a collector of rare porcelains, pictures, and musical instruments. He appears to have possessed considerable means; his collection of violins being valued at $75,000 or more. During the later years of his life he seems to have divided his time between Washington, where he owned a home, and Berlin, where he also maintained an apartment. His family consisted of two daughters and a son. The daughters, Mrs. Abell and Mrs. Von Horst, have resided much of the time abroad. The husband of the former was a musical critic and writer on musical affairs. Mrs. Von Horst's husband, an American citizen of German descent, who when abroad used the hereditary title of Baron, seems to have been the founder or patron of a musical conservatory in Coburg. The son, Dwight J. Partello, Jr., before his death, was in business in Chicago.

Prior to the transactions here involved, the father was the owner of a farm of 480 acres in Palo Alto county, Iowa. It is over this farm that this controversy arises. The plaintiff and appellee, Florence Shipley Partello, is the widow of the son, Dwight J. Partello, Jr., and the sole beneficiary under his will. The executor and executrix of the will of Dwight J. Partello, Sr., are defendants, and his above-mentioned daughters and their husbands are defendants and appellants. The action is in equity and the relief sought is the specific performance of an alleged contract on the part of Dwight J. Partello, Sr., to devise the farm to plaintiff.

It appears without substantial dispute that in 1912 the father executed a warranty deed to the son for the farm in question and sent it to the latter by mail. On January 11, 1920, the son died at the Edgewater Beach Hotel in Chicago, where he and his wife, Florence Partello, were living. The father arrived in Chicago a few hours after the son's death, and both before and after the funeral made frequent inquiries concerning the deed to the Palo Alto county farm and the leases with the tenant. After some search among the son's papers, following the funeral, the deed was found in a locked compartment of the son's safe in his office. The deed had not been recorded. The father stated that it was of no value to the widow because of that fact, and asked that it be returned to him. The widow sought the advice of Mr. Buell, an attorney who had been the legal adviser of her husband during his life. The matter was discussed for some time, the question being that if Mrs. Partello surrendered the deed her rights should be protected in some way. Finally it was agreed that if the father would execute a codicil to his will devising the farm to her she would surrender the deed. The codicil was dictated by Mr. Buell in the father's presence, executed by him and properly witnessed. Thereupon the deed was handed by the plaintiff to the father. A week later, after his return to Washington, he executed another codicil, making no reference to the former one, but providing that the farm in question should be sold and the proceeds divided equally between the plaintiff and the two daughters. The former codicil, executed in Chicago, was presumably destroyed. A carbon copy, however, had been retained by Mr. Buell in his files, and this is in evidence. Dwight J. Partello, Sr., died in August, 1920, and his will and the second codicil, executed in Washington, have been admitted to probate in the District of Columbia.

It should be said that, while the transaction in Mr. Buell's office, as briefly detailed above, is not admitted by the defendants, it is quite clearly established by the testimony of several witnesses, among them two of the three witnesses to the codicil, one of whom was the stenographer who received the dictation of the codicil, transcribed it, and placed in Mr. Buell's files the carbon copy in evidence. The testimony of the plaintiff herself was doubtless in large part incompetent. Mr. Buell, who dictated the codicil and was one of the attesting witnesses, died before the trial. The testimony of the two attesting witnesses is corroborated in many important respects by four other witnesses. This testimony is uncontradicted. We must regard the finding of the deed to the farm among the effects of the son; its possession by the plaintiff, his sole devisee; the execution of the codicil by the father and the surrender of the deed under the circumstances narrated above as fully established by competent evidence. And further, as to the effect of this transaction, it is equally clear that the plaintiff surrendered the deed in consideration of the promise of the father to execute a codicil to his will devising the farm to her, and that, in pursuance of such promise and in consideration of the surrender to him of the deed, the latter at the time fully executed the codicil contemplated by their agreement. The principal, indeed the real, controversy in this case is over the question whether this contract is enforceable at the suit of the plaintiff. Much of the voluminous record is given over to testimony relating to the delivery of the deed by the father to the son, whether conditional, and if so upon what conditions it was made, and these questions have been argued at great length, especially by counsel for appellants.

The specific relief asked in the petition is the enforcement of the alleged contract to devise the farm to plaintiff. Although the plaintiff alleges that the title to the land was in her husband by virtue of the deed and passed to her by his will, it is apparent she is not now asserting a title based on the deed but upon the contract. She sets up her surrender of the deed as the consideration for the contract upon which she relies, and, while she does not in terms aver that by surrendering the deed she became divested of the title, such is the plain inference to be drawn from her pleading. It may be that the mere surrender of his deed by the grantee to the grantor does not divest the title of the former; but, as will presently be seen, the situation here is much more than that, and after her surrender of the deed, under the circumstances disclosed, the plaintiff could not have been heard to assert title under it. She does not now rely upon a title so derived. It follows that the questions whether the deed was delivered by the father to the son, or what, if any, conditions were attached to the manual delivery of it, are not determinative of the plaintiff's claim. Appellants have, however, made the contention that there was no delivery, or a conditional delivery a basis for their argument that there was no consideration for the contract of the father to devise the farm to plaintiff. Upon the assumption that one or the other of these propositions has been established it is argued that, since plaintiff had nothing by virtue of the deed, she parted with nothing in surrendering it, and therefore the contract of the father was without consideration. In the aspect, then, of its relation to the question of consideration, both in respect to appellants' argument and in respect to plaintiff's good faith in asserting some claim under the deed before she surrendered it, rather than upon it as, in and of itself, determinative of the case, the question of delivery will be considered.

[1] The instrument, a warranty deed with the usual covenants, absolute and with no conditions appearing upon its face, had been in the possession of the deceased grantee during his life, and was found among his papers after his death. It passed rightfully into the hands of the plaintiff, his sole devisee. She parted with the possession of it, and it came into the hands of the grantor under circumstances fully disclosed by the record. Under such circumstances a delivery to the grantee will be presumed, and the burden of showing a want of delivery, or a conditional delivery, is upon the party so claiming. McGee v. Allison, 94 Iowa, 527, 63 N. W. 322;Witt v. Witt, 174 Iowa, 173, 156 N. W. 321;Potter v. Potter, 185 Iowa, 559, 170 N. W. 773;Hild v. Hild, 129 Iowa, 649, 106 N. W. 159, 113 Am. St. Rep. 600;Nowlen v. Nowlen, 122 Iowa, 541, 98 N. W. 383;Conway v. Rock, 139 Iowa, 162, 117 N. W. 273;Stiles v. Breed, 151 Iowa, 86, 130 N. W. 376;Mathers v. Sewell, 193 Iowa, 35, 186 N. W. 636.

[2] The deed, with the signature and the year in the date line torn away, is in evidence. What remains of the date shows it was signed on the 24th day of May. It appears from the certificate of acknowledgment that it was acknowledged in the District of Columbia on May 27, 1912. There was found among the papers of the grantee a letter in the handwriting of the grantor dated at his residence in Washington May 25, 1912, addressed to the son, in which this language appears:

“I have written out the deed of conveyance for the south farm and the first of the week will have it acknowledged, adding the certificate of the clerk of the court to make it perfect, and send it to you by registered letter. File it away in a very safe and secure place and if...