Tutt v. Smith

• Decision Date: 17 October 1924
• Docket Number: No. 36328.,36328.
• Citation: 200 N.W. 187
• Parties: TUTT v. SMITH ET AL.
• Court: Iowa Supreme Court

200 N.W. 187

TUTT

v.SMITH ET AL.

No. 36328.^a1

Supreme Court of Iowa.

Oct. 17, 1924.

Appeal from District Court, Lee County; H. F. Wagner, Judge.

Action in equity, wherein plaintiff seeks to quiet title to certain real estate in the city of Keokuk, Iowa. After a full trial, the trial court found against the plaintiff as to her principal claim, but allowed her to recover for certain expenditures made by her on the property, of which defendants do not complain. Plaintiff appeals. Affirmed.Rendlen & White, of Hannibal, Mo., and E. W. McManus, of Keokuk, for appellant.

Boyd & McKinley, of Keokuk, for appellees.

PRESTON, J.

Plaintiff alleged that she was the absolute owner of the premises, and that she derived title thereto by warranty deed from W. E. Herst, February 28, 1921; that the Webbs were making a claim to the premises, and that they had made a pretended conveyance of the same to defendant Smith, and a pretended mortgage to defendants Boyd & McKinley, but plaintiff alleges that the conveyance from the Webbs to Smith and the mortgage were void, because the said Webbs had no interest in the premises. Plaintiff claims that January 22, 1921, the Webbs conveyed the premises by warranty deed to W. E. Herst, subject to the mortgage of $1,500 to defendant loan association and certain taxes. The alleged deed from the Webbs to Herst was recorded February 16, 1921, so that the record title to the premises was in W. E. Herst at the time of the conveyance from Herst to plaintiff, February 28, 1921. By amendment to her petition, plaintiff pleads an equitable estoppel.

The defendants allege that the deed from the Webbs to Herst, dated January 22, 1921, was obtained through fraud and trickery, was without consideration, had never been delivered, and was void. Defendants further plead that January 12, 1922, a judgment and decree was rendered in a case entitled, Mary E. Webb v. W. E. Herst, adjudging said deed to be null and void, and quieting title thereto in said Mary E. Webb; that plaintiff intervened in said action and that, though a motion to strike the said petition of intervention was sustained because not properly verified, and for other reasons, the decree in the Webb v. Herst Case is an adjudication binding upon the plaintiff herein.

The deed from Webb to defendant Smith and the mortgage to Boyd & McKinley were admitted. The Smith deed is dated January 14, 1922, and the mortgage to defendants Boyd & McKinley bears the same date, January 14, 1922. Appellants contend that this deed and mortgage are of no validity because the Webbs had, in February prior thereto, parted with their interest in the property. It was also admitted that, on and prior to January 22, 1921, title to the premises was in Mary E. Webb, and that she was in the possession and occupancy thereof at that time, and at the time of the alleged conveyance from Herst to plaintiff, and at all times subsequent thereto. It also appears that title to the premises was subsequently revested in Mary E. Webb by deed from the heirs of T. H. Smith, and that this was before the trial of this case.

[1] The pivot in the case is as to whether there was a delivery of the deed dated January 22, 1921, from the Webbs to Herst. If there was no delivery, there was no deed, and the title did not pass to Herst. This being so, and the Webbs being in possession of the property, the claim of appellant that she was an innocent purchaser without notice is not controlling. The trial court found there was no estoppel as against the Webbs. This will be referred to later in the opinion. It seems to be conceded that the witnesses in this case were practically the same as those in the case of Webb v. Herst, but it appears that their evidence on the hearing of the instant case was different in some respects from that given in the first case. The trial court held against the defendants on the question of adjudication, and we think properly so, so that we shall spend no time on that proposition. The court did, however, on the evidence introduced in this case, reach the same conclusion as in the case of Webb v. Herst, and found from the evidence herein, that there had been no delivery of the deed from the Webbs to Herst. The trial court appears to have given the case thorough and careful consideration, and the views of the trial judge are reflected in an opinion filed by him, which, we think, is very clear and convincing.

[2] 1. Without going too much into details, defendants have shown by the weight of the testimony of defendants and other witnesses, though denied by plaintiff and her witnesses, that, after the deed from Webb to Herst, January 22, 1921, was executed, as to signing, the deed was placed in escrow, to be held until Herst and others should comply with certain of their agreements in regard to the execution of papers by which Herst was to deed certain lands in Missouri to Webb; that the conditions were...