Siedel v. Snider

• Decision Date: 14 November 1950
• Docket Number: No. 47746,47746
• Citation: 44 N.W.2d 687,241 Iowa 1227
• Parties: SIEDEL v. SNIDER.
• Court: Iowa Supreme Court

Page 687

44 N.W.2d 687

241 Iowa 1227

SIEDEL v. SNIDER.

No. 47746.

Supreme Court of Iowa.

Nov. 14, 1950.

Webster & Frederick, of Winterset, for appellant.

Hall & Ewalt, of Indianola, for appellee.

MANTZ, Justice.

Plaintiff's husband died intestate April 19, 1949, owning an interest (in common with plaintiff--not in joint tenancy) in the premises involved here. The contract sought to be enforced is dated September 17, 1949, five months later. By it plaintiff, as vendor, agreed to furnish defendant, the purchaser, an abstract showing merchantable title of record. She later tendered one which showed various affidavits designed to serve in lieu of administration proceedings on her husband's estate, in order to show heirs, freedom from debts and the homestead character of the premises from date of their acquisition, November 17, 1944.

The one question presented is the sufficiency of such showing on the abstract to comply with the requirement of the contract as to 'merchantable title,' whether, within the five year period allowed for administration, affidavits are competent to make of record for title purposes facts that are normally and properly shown by administration proceedings.

We are not here interested in the truth of the affidavits nor the sufficiency of the facts they purport to show. The record is stipulated with clear intent to present the one question stated above.

I. The terms merchantable, markstable, clear, perfect, good, as applied to title, are generally considered as synonymous. Fagan v. Hook, 134 Iowa 381, 385, 105 N.W. 155, 111 N.W. 981; Upton v. Smith, 183 Iowa 588, 590, 166 N.W. 268; 27 Words and Phrases, Perm. Ed., page 111, et seq; 26 Words and Phrases, Perm. Ed. page 542; Northouse v. Torstenson, 146 Neb. 187, 19 N.W.2d 34, 36.

Our own decisions have sufficiently defined the terms. In varying language we have said such a title is one that can again be sold to a reasonable purchaser, a title that a man of reasonable prudence, familiar with the facts and apprised of the questions of law involved, would in the ordinary course of business accept. See Kurtz v. Gramenz, 198 Iowa 222, 228, 198 N.W. 325; Fagan v. Hook, supra; Cappel v. Potts, 192 Iowa 661, 668, 185 N.W. 148; Dickerson v. Morse, 203 Iowa 480, 483, 212 N.W. 933; In re Estate of Hager, 212 Iowa 851, 864, 235 N.W. 563; Billick v. Davenport, 164 Iowa 105, 108, 145 N.W. 470.

The contract here requires a 'merchantable title of record.' That language excludes any title that requires a showing that is not properly of record. Billick v. Davenport, supra. This brings us to the question we have already posed, the competency of the affidavits shown on the abstract under the circumstances disclosed.

II. Affidavits are not eligible to record except as provided by statute. Fagan v. Hook, supra, 134 Iowa at page 388, 105 N.W. 155, 158. The only pertinent statute here is section 558.8, I.C.A. which permits the filing of affidavits by the owner in possession to 'explain' any 'defect in the chain of title'.

In Fagan v. Hook, supra, defendant proposed to show adverse possession by affidavit before the enactment of what is now Section 614.17, I.C.A. permitting such showing in certain cases. We said: 'The precise effect of this statute (Section 558.8) is not clear. It is enough in the instant case to note that it does not authorize the owner to supply a link in the chain by indicating, in the form of an affidavit, the oral evidence available to establish it. * * * Certainly it was not intended to enable any one to make out of record a title resting solely in parol.'

It has been held that under proper circumstances affidavits may be used to show who were the heirs of a deceased title holder and that all his debts were fully paid. Prichard v. Mulhall, 140 Iowa 1, 7, 118 N.W. 43. However, in the Prichard case but one year remained for taking out administration and it is said that defendant, by failure to object to the abstract after it was corrected, should be assumed to have waived all objection. 140 Iowa, pages 7, et seq., 118 N.W. 43.

We do not deem that decision sufficient to justify a holding here that the abstract tendered showed a merchantable title. Plaintiff's husband had been dead but six months. More than four years remained during which time some creditor or other interested person might appear and take out original administration and establish facts materially affecting the title. Section 633.47, I.C.A.

There is of course no law to compel resort to administration by the heirs and surviving spouse of an intestate decedent. The title to his property passes whether administered upon or not. Reichard v. Chicago, B. & Q. R. Co., 231 Iowa 563, 578, 1 N.W.2d 721. The surviving spouse and heirs may agree among themselves to its distribution. Heinz v. Vawter, 221 Iowa 714, 716, 266 N.W. 486. But we are speaking here of the manner of making that devolution of title a matter of record so it may be...