Walkley v. Clarke

• Court: United States State Supreme Court of Iowa
• Writing for the Court: LADD
• Citation: 78 N.W. 70,107 Iowa 451
• Parties: WALKLEY ET AL. v. CLARKE ET AL.
• Decision Date: 31 January 1899

107 Iowa 451
78 N.W. 70

WALKLEY ET AL.
v.
CLARKE ET AL.

Supreme Court of Iowa.

Jan. 31, 1899.

Appeal from district court, Kossuth county; George H. Carr, Judge.

Action to quiet title to 40 acres of land. Decree was entered dismissing the petition, and plaintiffs appeal. Affirmed.

[78 N.W. 71]

Clarke & Cohenour and Kinne, Hume & Bradshaw, for appellants.

Carr & Parker, for appellees.

LADD, J.

The plaintiffs, as heirs of Harry Walkley, who died March 2, 1893, claim to own the S. E. 1/4 of S. W. 1/4 of section 31, township 96 N., of range 28 W. of fifth P. M., Iowa. On the 12th day of November, 1890, Walkley executed to A. D. Clarke a deed conveying the N. E. 1/4 of section 11, in township 95, of the same range, and included therein is the above description. The deed was not recorded till March 15, 1893--after Walkley's death. The sole issue of fact is whether Clarke inserted this description of the 40 acres of land in controversy in the deed after its execution, without the authority of Walkley. We shall not review the evidence relating to the possession and control of the land prior to December 4, 1892, as it appears the description was inserted at that time. Different colored ink was used, and no effort made to disguise the handwriting. That the acknowledgment of the deed can have no reference to this land does not affect the validity of the instrument as between the parties to it. Nor was the execution of any deed essential to transfer the title. Code, § 4626; Hughes v. Lindsey, 31 Iowa, 332; Wickham v. Henthorn, 91 Iowa, 243, 59 N. W. 276. If Clarke paid for it, or went into possession, with the assent of Walkley, in pursuance of a contract of purchase, the plaintiffs should be denied the relief prayed.

2. The plaintiffs read in evidence certain interrogatories and answers of the deposition of F. C. Wilson, taken by them, and omitted others bearing on the issues which were afterwards introduced by the defendants. A party cannot be permitted to pick from a deposition, taken at his instance, those portions favorable to himself, and omit the balance. He should either read all that which is pertinent to the issues or none. This is essential to the orderly administration of justice, and is due the opposite party. Kilbourne v. Jennings, 40 Iowa, 474; Grant v. Pendery, 15 Kan. 236; Thomas v. Miller, 151 Pa. St. 482, 25 Atl. 128;Converse v. Meyer, 14 Neb. 190, 15 N. W. 340. When offered by the opposite party, such parts may be received as relate to any distinct transaction, but must include all said on the particular subject. Bank v. Rhutasel, 67 Iowa, 318, 25 N. W. 261;Van Horn v. Smith, 59 Iowa, 147, 12 N. W. 789;Calhoun v. Hays (Pa.) 42 Am. Dec. 275; Converse v. Meyer, supra. It follows, a fortiori, that, after a deposition has been introduced by the party taking it, he will not be permitted to withdraw a part--such as the cross-examination -- without withdrawing the entire deposition, nor will he be allowed to withdraw the whole for the purpose of re-reading a part only. The defendants had their election to have Wilson's deposition excluded, or to read the parts omitted. As they chose the latter course, we shall consider the entire deposition in evidence. Whitman v. Money, 63 N. H. 448, 2 Atl. 899. The attempt to withdraw the cross-examination of Clarke will be disregarded.

3. The defendants rely on the evidence of Wilson and Clarke. The former testified in his deposition taken and introduced in evidence by the plaintiff that he heard Clarke admit, after the death of Walkley, the insertion of the description in the deed, and that Clarke then said “he could prove where the payments came in, who was paying in some money.” He was then asked: “Q. Was anything said by Mr. Clarke at the time of that conversation that he paid Mr. Walkley part cash and part mortgage? A. Yes, sir. Q. Was there anything else said at that time as to when the payment was made by Mr. Clarke to Mr. Walkley? A. I don't recollect what was said about the time. Q. There was...