Wagle v. Iowa State Bank

• Decision Date: 20 March 1916
• Docket Number: 30808
• Citation: 156 N.W. 991,175 Iowa 92
• Parties: E. C. WAGLE, Appellee, v. IOWA STATE BANK, Appellee, ALEX JENKINS, Appellant
• Court: Iowa Supreme Court

156 N.W. 991

175 Iowa 92

E. C. WAGLE, Appellee, v. IOWA STATE BANK, Appellee, ALEX JENKINS, Appellant

No. 30808

Supreme Court of Iowa, Des Moines

March 20, 1916

Appeal from Polk District Court.--W. H. MCHENRY, Judge.

ALEX JENKINS acquired Lot 14 in Block 3 in Rollinson's Garden Addition to Ft. Des Moines,--since taken into the city of Des Moines, May 12, 1909,--subject to a mortgage of $ 400. On August 7, 1909, Jenkins, his wife joining, executed a mortgage to the Iowa State Bank, as collateral security for the payment of the purchase price of lots bought on contract. This mortgage was first filed for record August 25, 1913. Not having been acknowledged, it was subsequently withdrawn and acknowledged September 11, 1913, its date being changed accordingly, and it was again filed for record on the same day. Jenkins, his wife joining, executed a special warranty deed to Mary Paulley, October 10, 1910, reciting therein that said premises were "free from incumbrances, except $ 1,000 which the grantee assumes and agrees to pay." Such agreement was the entire consideration. This deed, in the form stated, was never recorded. On January 2, 1912, Jenkins authorized in writing the name of Napoleon Trahan to be inserted as grantee in the deed, instead of that of Mary Paulley, whom Trahan had married. This change was probably made by one Wilson, who procured Jenkins' consent, and the deed, as so changed, was filed for record January 3d following. On March 6, 1912, Trahan entered into a contract to exchange the lot, "subject to a mortgage of $ 400 or the record liens now shown against said property," to plaintiff for real estate in Webster City worth about $ 500 and in pursuance thereof, delivered to him a deed dated December 13, 1911, which was filed for record March 18, 1912. At that time, there was an outstanding tax sale certificate to redeem which the plaintiff paid $ 40.40, and the taxes payable that year were unpaid, and the lot was worth $ 1,000. Prior to receiving the deed, plaintiff made search of the records in the county recorder's office and found of record the $ 400 mortgage only. Plaintiff tendered the Iowa State Bank $ 1.25, and demanded the execution by it of a quitclaim deed to the premises. This was refused, and thereupon this suit was commenced, praying that title be quieted, that the mortgage of $ 600 be canceled of record and that an attorney's fee of $ 25 be taxed against said bank. Both defendants answered, and Jenkins filed a cross-petition, demanding that the amount of the mortgage be applied by the bank on his indebtedness to it. On hearing decree was entered as prayed by plaintiff, the cross-petition was dismissed, and $ 25 as attorney's fees taxed against the bank. Jenkins appeals.

Affirmed.

Brown & Missildine, for appellant.

William B. Brown and E. C. Corry, for appellees.

LADD, J. EVANS, C. J., GAYNOR and SALINGER, JJ., concur.

OPINION

LADD, J.

I.

The controversy is over a mortgage of $ 600 executed by Alex Jenkins, August 7, 1909, on a lot then owned by him, to the Iowa State Bank, and not recorded until September 11, 1913. In the meantime, October 10, 1910, Jenkins, his wife joining, executed a warranty deed conveying the lot to Mary Paulley, "free from incumbrances, except $ 1,000 which the grantee assumes and agrees to pay." This deed was not filed for record until January 3, 1912, after the name of the grantee, Mary Paulley, had been erased, and that of Napoleon Trahan, whom she had married, inserted instead. This was done in pursuance of written authority of Jenkins, given the defendant before deed was recorded. Trahan and wife conveyed the lot to the plaintiff by warranty deed, dated December 13, 1911, but recorded March 18, 1912, "subject to the mortgage of $ 400 or the record liens now shown against said property." This mortgage covered the lot when Jenkins acquired it in April, 1909.

No question is made but that plaintiff was charged with notice of the recitals in the conveyance from Jenkins to Trahan, if that conveyance as changed was acknowledged. Aetna Life Ins. Co. v. Bishop, 69 Iowa 645, 29 N.W. 761; Huber v. Bossart, 70 Iowa 718, 29 N.W. 608. Appellee (plaintiff) contends, however, that, as the change in names of grantee occurred after the deed became effective by delivery to convey the land to Mary Paulley, the substitution of the name "Napoleon Trahan" as grantee, instead of hers, operated as a new deed. Conceding, as appellant contends, without so deciding, that the grantee ratified this change, we inquire whether in such circumstances the deed must have been redelivered and reacknowledged, in order that the record thereof shall be constructive notice to third persons. If so, then plaintiff, in acquiring the lot from Trahan, was not charged with notice of recitals in the deed from Jenkins to Trahan, and took it freed from the lien of the mortgage. On the other hand, if another delivery and acknowledgment were not essential to the recording of the deed and thereby imparting constructive notice, then plaintiff must be deemed to have been put on inquiry concerning the mortgage in acquiring title to the lot. There is no claim that the acknowledgment is defective; the contention is that, in the form recorded, it had not been acknowledged at all; and therefore the record of it did not impart constructive notice.

Of course, the wife of the grantor, not having consented to the change, was not bound thereby. For all that appears, she might have been perfectly willing to join in a deed to Mary Paulley, and yet decline to part with her dower interest to Trahan. Nor do we think a change in the parties to a deed--that is, of grantee or grantor--after its delivery can effect the symbolic transfer of title already accomplished, or can be made without creating of it a new instrument of conveyance. The instrument, prior to alteration in such circumstances, has accomplished its purpose by the transmission of title to the then grantee, and the latter is not divested by the change. If anything is destroyed by the change, it is the deed, and not the title.

A deed may be altered, mutilated, changed or wholly destroyed so as to be no longer competent evidence or capable of being introduced in evidence, yet the title vested in the grantee is not thereby destroyed. 1 Devlin on Real Estate (3d Ed.), Sec. 461a; 13 Cyc. 721; Waldron v. Waller, 65 W.Va. 605, 32 L. R. A. (N. S.) 284, 293, and note. In Gibbs v. Potter, 166 Ind. 471 (9 A. & E. Ann. Cas. 481, 77 N.E. 942), the court announced the principle to be well settled that the alteration or destruction of a deed subsequent to its full execution, although done by consent of parties, will not divest the original grantee of title or revest such title in the grantors. Stanley v. Epperson, 45 Tex. 644; Tabor v. Tabor, 136 Mich. 255 (99 N.W. 4); 9 Am. & Eng. Ency. of Law (2d Ed.) 163; United States v. Widow and Heirs of West, 63 U.S. 315, 22 HOW 315 (16 L.Ed. 317); Woods v. Hilderbrand, 46 Mo. 284 (2 Am. R. 513); Wheeler v. Single, 62 Wis. 380 (22 N.W. 569). See Slattery v. Slattery, 120 Iowa 717, 95 N.W. 201. Where the instrument is so changed as that purported conveyance is to a different person from the original grantee, or purports to convey different property, it is, in effect, a different instrument, and must be redelivered and reacknowledged to become effective as a conveyance and to be recorded. Thus, in Moelle v. Sherwood, 148 U.S. 21 (37 L.Ed. 350, 13 S.Ct. 426), the description of the property in the deed was changed after it had been delivered and recorded, and the court said:

"An alteration in the description of property embraced in a deed, so as to make the instrument cover property different from that originally embraced, whether or not it destroys the validity of the instrument as a conveyance of the property originally described, certainly does not give it validity as a conveyance of the property of which the new description is inserted. The old execution and acknowledgment are not continued in existence as to the new property. To give effect to the deed as one of the newly described property is should have been reexecuted, reacknowledged, and redelivered. In other words, a new conveyance should have been made."

In Waldron v. Waller, 65 W.Va. 605 (32 L. R. A. (N. S.) 284, 285, 64 S.E. 964), the change was by adding to the property conveyed after delivery of the deed, and the court observed that:

"The...