Welke v. Wackershauser

• Decision Date: 13 March 1909
• Parties: WELKE ET AL. v. WACKERSHAUSER ET AL.
• Court: Iowa Supreme Court

143 Iowa 107

120 N.W. 77

WELKE ET AL.

v.WACKERSHAUSER ET AL.^d1

Supreme Court of Iowa.

March 13, 1909.

Appeal from District Court, Boone County; W. D. Evans, Judge.

Action to have established the plaintiffs' interests in a certain tract of real property and for partition thereof. The defendants Samuel A. and Stella Wackershauser denied the interests claimed by plaintiffs and asserted title in themselves to the entire premises. There was a decree for plaintiffs, and the defendants Samuel A. and Stella Wackershauser, his wife, appeal. Affirmed.D. G. Baker, for appellants.

Dyer & Hull, for appellees.

McCLAIN, J.

In the year 1900 Jacob Wackershauser, the father of the three plaintiffs and of defendants Samuel A. and Chas. W. Wackershauser, died seised in fee simple of a quarter section of land in Boone county which is the subject-matter of the present suit. His wife, Catherine Wackershauser, survived him and became owner of an undivided one-third interest in said land; each of the children above named becoming owner of a one-fifth interest in the remaining two-thirds. The interests of the other heirs in this undivided two-thirds share passed by purchase into the ownership of defendants Samuel A. Wackershauser and his wife, Stella.Subsequently, on the 20th of September, 1905, the surviving widow, Catherine Wackershauser, died, and plaintiffs contend that each inherited from her as heir an interest to the extent of one-fifteenth in the land. Defendant Samuel A. Wackershauser asserts ownership to the entire interest of the widow under a quitclaim deed executed in her behalf during her lifetime by R. D. Royster, her attorney in fact.

1. The power of attorney from Catherine Wackershauser to R. D. Royster, under which the latter attempted to pass title to Samuel A. Wackershauser of said Catherine Wackershauser's interest in the property, subject to a reservation of the use and rents thereof during her natural life in consideration of “one dollar and other valuable considerations, the receipt whereof is hereby acknowledged,” authorized said Royster “to make leases, sales, and execute conveyances for any and all property, real and personal, owned by me, and manage and control said property in all things and for all purposes as fully as I myself might do, giving and granting unto my said attorney full power and authority to do and perform all, any, and every act and thing whatsoever required and necessary to be done in and about the premises as fully as I might or could do it if personally present.” This power of attorney was executed within a month after the death of Jacob Wackershauser, and included in a portion thereof not above recited the authority to receive for Catherine Wackershauser rents, money, or property coming to her from the estate of her deceased husband and from all other sources. According to the testimony of Royster this power of attorney was given because Catherine Wackershauser wanted him to do her business, and he told her that was the only way he would do it, and that he would not do it any other way. The quitclaim deed was executed February 13, 1901, and was recorded in April following. The power of attorney did not authorize Royster to execute such conveyance as that which he made to Samuel A. Wackershauser. Under authority to convey an agent cannot sell otherwise than for cash, unless specially authorized, nor can he make conveyance by way of gift. Wilkin v. Voss, 120 Iowa, 500, 503, 94 N. W. 1123;Hampton v. Moorhead, 62 Iowa, 91, 17 N. W. 202;Payne v. Potter, 9 Iowa, 549; 2 Jones, Conveyancing, § 1030; Mechem, Agency, §§ 325, 326. Parol evidence of conversations between Royster and Catherine Wackershauser, and between the latter and the attorney who drew the power, was, of course, not admissible to vary the terms of the instrument by extending the authority thereby conferred.

2. Appellants rely,...