Saunders v. Saunders

• Decision Date: 21 December 1901
• Citation: 88 N.W. 329,115 Iowa 275
• Parties: IRWIN SAUNDERS, Appellant, v. ERNEST SAUNDERS
• Court: Iowa Supreme Court

88 N.W. 329

115 Iowa 275

IRWIN SAUNDERS, Appellant, v. ERNEST SAUNDERS

Supreme Court of Iowa, Des Moines

December 21, 1901

Appeal from Poweshiek District Court.--HON. A. R. DEWEY, Judge.

THE plaintiff is one of the heirs of Harriet E. Saunders deceased, and claims an interest in the property in controversy by reason thereof. He avers that the defendants claim adversely to him under and by virtue of an instrument in writing, in the form of a deed, purporting to be a conveyance from said Harriet E. Saunders to the defendant, a copy of which is as follows:

"Know all men by these presents, that I, Harriet E. Saunders, of Poweshiek county, Iowa, in consideration of one dollar in hand paid by Ernest F. Saunders, of Poweshiek county, Iowa do hereby sell and convey unto the said Ernest F. Saunders the following described premises, situated in the county of Poweshiek, state of Iowa, to-wit: The east three-fourths of the north half of the southwest quarter, and one acre in the southwest corner of the northwest quarter of the southeast being twenty rods east and west, and eight rods north and south, all in section twenty-one, township seventy-eight range fifteen west, subject, however, to the occupancy and possession of said real estate for and during the natural life of the grantor. The intention being that this deed shall not be in force or take effect until after the death of the grantor herein. And I hereby convenant with the said Ernest F. Saunders that I hold said premises by good and perfect title; that I have good right and lawful authority to sell and convey the same; that they are free from all liens and incumbrances whatsoever; and I covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever. Signed the 30th day of August, 1895.

"Harriet E. her X mark. Saunders.

"Witness mark: J. W. Carr."

The plaintiff alleges that said instrument is testamentary in character, and asks that it be declared void, and that an estate in the land be established in him. There was a demurrer to the petition on the ground that it affirmatively shows a conveyance of the land to the defendant in the lifetime of Harriet E. Saunders. The demurrer was sustained, and the plaintiff appeals.

Affirmed.

S. R. Clute for appellant.

J. W. Carr and Haines & Lyman for appellee.

OPINION

SHERWIN, J.

If the instrument under consideration is not a deed conveying a present interest in the land, it is nothing of any validity for it cannot be enforced as a will, because not properly executed. The appellant concedes, and rightly so, that but for the language, "The intention being that this deed shall not be in force or take effect until after the death of the grantor herein," the instrument would be a deed conveying a present estate, but with the possession and enjoyment thereof postponed until after the death of the grantor. It is fundamental that the intention of the maker of an instrument must control in all cases of this kind, if the intention can be ascertained from the entire instrument, and the true test to determine whether it is a deed or a will is whether it is to take effect immediately, or only upon the death of the maker. This instrument recites a valuable consideration paid by the defendant. It says that the maker does "hereby sell and convey" land accurately and specifically described. It contains a covenant that the maker holds said premises by "good and perfect title;" that she has "good right and lawful authority to sell and convey the same;" that it is free from all incumbrances; and the title is warranted. It was acknowledged, delivered, and filed for record in the proper office, and duly recorded. All of these matters are considered as strong evidence of an intention to...