Potter v. Potter

• Decision Date: 19 February 1919
• Docket Number: 32194
• Citation: 170 N.W. 773,185 Iowa 559
• Parties: H. O. POTTER, Appellee, v. H. W. POTTER et al., Appellants
• Court: Iowa Supreme Court

170 N.W. 773

185 Iowa 559

H. O. POTTER, Appellee, v. H. W. POTTER et al., Appellants

No. 32194

Supreme Court of Iowa, Des Moines

February 19, 1919

Appeal from Chickasaw District Court.--W. J. SPRINGER, Judge.

ACTION in equity to cancel certain deeds and a bill of sale on the ground that there was no delivery made during the lifetime of the grantor. Decree was entered for the plaintiff. Defendants appeal.--Reversed and remanded.

Reversed and remanded.

Mears & Lovejoy and Dawson & Wehrmacher, for appellants.

W. H Scott and Smith & O'Connor, for appellee.

GAYNOR J. LADD, C. J., SALINGER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

On and prior to the 3d day of March, 1913, one Marvin Potter was the owner of a certain 80 acres of land in Swift County Minnesota, and certain lots in the town of Nashua, Chickasaw County, Iowa. He was also the owner of certain personal property. He was a widower, and had two adult sons, H. O. Potter, plaintiff, and H. W. Potter, defendant.

On the 17th day of January, 1913, Marvin caused to be prepared a deed to the Minnesota land which recites:

"In consideration of the sum of one dollar and other valuable considerations, in hand paid by said H. W. Potter (defendant), of Chickasaw County, state of Iowa, do hereby sell and convey to the said H. W. Potter, and to his heirs and assigns the following described premises, to wit, forever all that tract or parcel of land lying and being in the county of Swift and state of Minnesota (describing it), and I do hereby covenant with the said H. W. Potter that I am lawfully seized in fee simple of said premises, that they are free from incumbrance; that I have good, right and lawful authority to sell the same; and I do covenant to warrant and defend the said premises and appurtenances thereunto belonging against the lawful claims of all persons whomsoever."

On the same day, he caused to be prepared a deed to the property in Nashua, the deed stating:

"I, Marvin Potter, in consideration of the sum of one dollar and other valuable considerations, in hand paid by H. W. Potter * * * do hereby sell and convey unto the said H. W. Potter and to his heirs and assigns, the following described premises,"--being the lots hereinbefore described, and with the same covenants of warranty contained in the deed to the Minnesota land. These deeds were duly signed and acknowledged by Marvin on that day, but retained in his possession until the 3d day of March, 1913.

On this day, he caused to be prepared a bill of sale, in substantially the following words:

"I, Marvin Potter, * * * for the sum of one dollar and other valuable considerations, have this day sold and to be delivered after my decease, unto my son, his heirs or assigns, H. W. Potter, * * * all my chattels, moneys, bonds and mortgages, and all household goods, also books and pictures, also all money and notes that may be due me at the time of my decease, the same being sold to the said H. W. Potter for value received, and to have and to hold the said goods, chattels, bonds, mortgages and property by the said H. W. Potter, against all other claims howsoever, and I, the said Marvin Potter, claim that I am the lawful owner of all goods and chattels and property herein mentioned."

This bill of sale was also duly signed, executed, and acknowledged by the said Marvin Potter. All these instruments were prepared by one F. R. Shope, an old friend of Marvin Potter's. The deeds were in the possession of Marvin Potter on the 3d day of March, 1913, at the time the bill of sale was executed, and were there present in the hands of Marvin Potter at that time.

At the time the bill of sale was executed, Marvin Potter also caused a note to be prepared by his friend, Shope, for $ 600, payable to his other son, the plaintiff in this suit, with the provision that it should not draw interest until the death of Marvin Potter, and should not become due until five years after the death of Marvin Potter. A mortgage was prepared, covering the land in Minnesota, and running to H. O. Potter. After all these instruments were completed, they were placed in an envelope, in the presence of Mr. Shope, or by Mr. Shope, at the direction of Marvin Potter. Mr. Shope wrote on the envelope the following words: "To H. W. Potter." After all this had been done, Marvin Potter handed the defendant the envelope containing the papers, and said--calling him by his first name:

"Here are your papers. Take them and put them in the bank. Keep them there with your other papers. Don't put them on record until after I am gone."

These papers were prepared in Marvin Potter's house. H. W. Potter, the defendant, and his wife were present at the time. Both had been staying with Marvin for some time before these instruments were executed. It appears that, after these papers were handed to the defendant H. W. Potter, he took them and deposited them in a bank, in which he had kept papers for some eight or nine years. It may be, and probably is, true that his father kept papers at the same place in which these papers were deposited; but it is also true that the defendant had used this same receptacle for the deposit of his own papers. How long they remained there in the bank does not definitely appear. They were taken from the bank, and were in the possession of the defendant at the time his father died. The defendant testifies:

"These papers were kept at the bank. They were not in the bank at the time of my father's death; neither were the deeds nor the bill of sale. They were in my box. I had them down at my house."

Marvin Potter died on Saturday, the 9th day of March, 1916. On the Monday following, the deeds and bill of sale were placed on record. After the father's death, the defendant mailed the note for $ 600, with the mortgage that secured it, to his brother, the plaintiff. The plaintiff refused to accept them.

This action is brought by the plaintiff, the other brother, to cancel these deeds and bill of sale, on the ground that they were never delivered to the defendant during the life of Marvin Potter, and to have the property conveyed by the instruments declared intestate property. Issue being joined, a trial was had to the court, and a decree entered for the plaintiff, substantially as prayed. From this decree the defendants appeal.

The question for our determination is practically a fact question. The law questions relate only to the sufficiency of the facts proven to constitute a valid delivery, vesting title in the defendant.

There is a controversy touching what was said at the time these papers were delivered by Marvin to the defendant. There is no controversy as to the manual delivery of the papers in question to the defendant. Shope testified first that, when Marvin Potter handed the papers to his son, the defendant, he said, calling him by name:

"Here are your papers. Take them and put them in the bank. Keep them there with your papers. Don't put them on record until after I am gone."

On cross-examination, he testified that the father said, at the time he handed the papers to the defendant:

"Here are your papers. Take them and put them in the bank with your other papers. Don't put them on record until after I am gone."

Again, on cross-examination, he said that Marvin said to his son:

"Here are the papers. Put them in the bank and keep them there until after I am gone."

On being recalled for further examination, he testified that Marvin Potter took the papers and the envelope and handed them to his son, the defendant, and said, "Here," calling him by name, "are your papers. Put them in the bank until after I am gone."

Mr Getsch, president of the Commercial Savings Bank of Nashua, testified that he had a conversation with the defendant, a few days after his father died, concerning a certificate of deposit; that defendant came to the bank, and wanted to know if he could get the money on the certificate. The witness asked the defendant what his authority was for drawing the money. It does not appear whether the defendant had the certificate with him at that time or not. A few days, or possibly a couple of weeks, after that, and after the certificate became due, he had another conversation with the...