Shearer v. Weaver
| Decision Date | 05 October 1881 |
| Citation | 56 Iowa 578,9 N.W. 907 |
| Parties | SHEARER AND ANOTHER v. WEAVER AND ANOTHER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Wapello circuit court.
This is an action for the partition of certain real estate. The plaintiffs are husband and wife. The plaintiff Emma Shearer claims that she, as the heir of John P. Weaver, is entitled to two-thirds of said real estate, and that Nancy Weaver, as the widow of John P. Weaver, is entitled to the remaining one-third of said estate. The defendant J. P. Hawthorn claims that he, as the grantee of Isaac Weaver, is the owner of one-third of the land described. The cause was referred to I. N. Mast, Esq., who reported the facts, and recommended that one-third part of the lands be set apart to Emma Shearer, Nancy Weaver, and J. P. Hawthorn, respectively. Upon the facts reported the court disregarded the recommendation of the referee, and set apart two-thirds of the land to Emma Shearer, and one-third to Nancy Weaver. The defendant Hawthorn appeals. The facts are fully set forth in the report of the referee.W. W. Corey, H. H. Trimble, and W. J. Williams, for appellant.
Stiles & Lathrop, for appellees.
The referee filed a report as follows:
“(1) That on the thirtieth day of July, 1875, John P. Weaver died intestate, seized in fee of the following described real estate, to-wit: The E. 1/2 of the N. E. 1/4 of section No. 33, and 60 acres off of the south part of the N. W. 1/4 of section No. 34, all in township No. 73, range No. 12 west; also the N. 12 acres of the N. E. 1/4 of the N. W. 1/4 of section No. 5, township No. 72, range No. 12 west, all in Wapello county, Iowa.
(2) That John P. Weaver left surviving him Nancy Weaver, his wife, the defendant herein.
(3) That he also left surviving him the plaintiff Emma Shearer, intermarriedwith plaintiff John Shearer; that said Emma Shearer is the person named or referred to in the adoption papers as Barbara M. Broherd, and a change of name as Emma Weaver.
(4) That plaintiff Emma Shearer claims an interest in said lands as heir of John P. Weaver, by virtue of the adoption paper referred to in the third finding of fact; that said adoption paper was filed for record July 17, 1875, in the office of the recorder of deeds of Wapello county, Iowa, and was entered of record in deed record K, at page 343, and that said adoption paper was indexed as in the name of Tabitha Broherd, grantor, and John P. Weaver, grantee, and was not indexed in the name of the parent by adoption as grantor and the child as grantee, and that the original name of the child is stated in the adoption paper.
(5) That said Emma Shearer began to live with and reside in the family of the said decedent, John P. Weaver, when she was about four years old, and continued to reside in said family for about 18 years, and until her marriage with her husband, J. W. Shearer; that she was about seven years old at the time the adoption papers were executed.
(6) That John P. Weaver also left surviving him one Isaac Weaver, who claims an interest in said lands, and who conveyed whatever interest he had therein to the defendant J. P. Hawthorn, by two deeds, dated respectively March 5, 1877, and April 3, 1877, and recorded at page 310 of deed record No. 13 of Wapello county records, and at page 456 of same record.
(7) That said Isaac Weaver began to live with and reside in the family of John P. Weaver when he was about three years old, and continuously resided in said family until after the death of said John P. Weaver, and until after said Isaac Weaver had attained his majority; that during the time he so lived with said John P. Weaver he was obedient to the commands of said John P. Weaver and his wife, Nancy Weaver; was industrious and faithful in the discharge of all the duties that were assigned to him.
(8) That said Isaac Weaver is the son of Mark Mann and Susannah Mann; that about the year 1859 John P. Weaver took the child to live with him on trial, and to see if he would like him; that, after he had resided for a brief period with said Weaver, a contract was entered into between said John P. Weaver and Mark Mann, the father of the child, in substance as follows: Said John P. Weaver agreed that he would take and keep the child as his own child; that he would make him an heir, and that he should have an equal share with Emma Weaver, (now Emma Shearer,) the daughter, in his property.
(9) That this same contract in substance was renewed and reaffirmed about the year 1864 by and between said John P. Weaver and Mark Mann; that from 1859 to this time the said child had continually resided with said Weaver, and was then residing with him.
(10) That on December 6, 1872, an adoption paper was executed, as shown by Exhibit B to the referee's record of evidence herewith filed; that said adoption paper was filed for record with the recorder of deeds of Wapello county, Iowa, August 28, 1875, and was recorded in Book 12, page 49, of the Record of Deeds; that it was refiled for record, in the same office, July 10, 1877, and recorded in book 14, page 177, of the deed record of Wapello county, Iowa.
(11) That from the time said agreement between Mark Mann and John P. Weaver was made in 1859 to the present time said Isaac Weaver has been treated by said John P. Weaver and his wife, Nancy Weaver, as a son--as a child. That the administratrix of the estate of said John P. Weaver reported him as an adopted son, and that he was so known and considered generally in the neighborhood where Mr. John P. Weaver resided.
(12) That defendant J. P. Hawthorn purchased from said Isaac Weaver the interest in the land in controversy in good faith, believing him to be an adopted son of said John P. Weaver, but without any further investigation than the neighborhood report and understanding.
(13) That after the execution of the adoption paper (Exhibit B to the evidence as reported) it was placed in John P. Weaver's hands with the understanding on the part of Mark Mann, and the promise on the part of John P. Weaver, that said Weaver would have it recorded.
(14) That said John P. Weaver took the following action in relation to the recording of said paper, to-wit: He placed said paper in the hands of W. P. Simmonds, a neighbor, with instructions that, when he went to Ottumwa, he should have the paper recorded; that said Simmonds failed to go to Ottumwa, on account of the season, distance, etc., and did not have the paper recorded, but returned it to Weaver; that this effort towards recording occurred in the latter part of 1872, or in the early part of the year 1873.
(15) That Isaac Weaver, in so far as h...
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