Shearer v. Weaver

• Decision Date: 05 October 1881
• Citation: Shearer v. Weaver, 56 Iowa 578, 9 N.W. 907 (Iowa 1881)
• Parties: SHEARER ET AL. v. WEAVER ET AL
• Court: Iowa Supreme Court

9 N.W. 907

56 Iowa 578

SHEARER ET AL. v. WEAVER ET AL

Supreme Court of Iowa, Des Moines

October 5, 1881

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.

AFFIRMED.

W. W. Cory, H. H. Trimble and M. J. Williams, for appellant.

Stiles & Lathrop, for appellees.

OPINION

DAY, J.

The referee filed a report as follows: "1st. That on the 30th day of July, 1875, John P. Weaver died intestate, seized in fee of the following described real estate, to-wit: The E1/2 of the NE1/4 of section No. 33, and 60 acres off of the south part of the NW1/4 of section No. 34, all in township No. 73, range No. 12 west. Also the N twelve acres of the NE1/4 of the NW1/4 of section No. 5, township No. 72, range No. 12 west; all in Wapello county, Iowa.

"2d. That John P. Weaver left surviving him Nancy Weaver, his wife, the defendant herein.

"3rd. That he also left surviving him the plaintiff Emma Shearer intermarried with plaintiff John Shearer; that said Emma Shearer is the same person named or referred to in the adoption papers as Barbara M. Broherd and a change of name as Emma Weaver.

"4th. That plaintiff Emma Shearer claimed 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 17th, 1858, 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, and 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.

"5th. 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 eighteen 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.

"6th. 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 5th, 1877, and April 3d, 1877, and recorded at page 310 of deed record No. 13, of Wapello county records, and at page 456 of same record.

"7th. 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.

"8th. 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 said 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.

"9th. 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 continuously resided with said Weaver and was then residing with him.

"10th. That on December 6th, 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 28th, 1875, and was recorded in book 12, page 49, of the records of deeds; that it was refiled for record, in the same office, July 10th, 1877, and recorded in book 14, page 177, of the deed record of Wapello county, Iowa.

"11th. 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.

"12th. 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.

"13th. 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.

"14th. 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 said Weaver; that this effort toward recording occurred in the latter part of 1872, or in the early part of the year 1873.

"15th. That Isaac Weaver in so far as he could do so acted in conformity with the contract made for him by his father, and believed himself to be an adopted child of said Weaver and remained in said family under that belief for some time after attaining his majority.

"My conclusions of law therefore are: That in the issues referred--joined between plaintiff and defendant J. P Hawthorn--the equities are with the said defendant Hawthorn; that he is entitled...