Wickham v. Henthorn

• Decision Date: 21 May 1894
• Citation: 59 N.W. 276,91 Iowa 242
• Parties: WICKHAM v. HENTHORN.
• Court: Iowa Supreme Court

91 Iowa 242

59 N.W. 276

WICKHAM

v.HENTHORN.

Supreme Court of Iowa.

May 21, 1894.

Appeal from district court, Hardin county; J. L. Stevens, Judge.

Action in equity to quiet the title to that part of the N. E. 1/4 of the S. E. 1/4 of section 36, in township 89 N. of range 20 W. 5th P. M. Iowa, Hardin county, lying east of the center of the Iowa river, containing about six acres. Each party claims by chain of title; also by prescription; and each asks to be quieted in his title. Decree was entered dismissing the plaintiff's petition and quieting the title in the defendant. Plaintiff appeals. Affirmed.Huff & Ward, for appellant.

C. E. Albrook, for appellee.

GIVEN, J.

1. We first consider the contention as to title by deed. It appears by the abstracts of title presented by both parties that each claims through W. H. Nelson. Plaintiff shows a quitclaim deed from Sylvester A. Hamlin to Joseph C. Butler, dated July 26, 1872, filed for record May 24, 1889. Mr. Hamlin testifies that he purchased the land from Mr. Nelson in 1869, and occupied it, paid taxes thereon, and took timber therefrom, up to 1872, when he conveyed the land to Butler. He says, “I don't know certain that Nelson ever executed the deed to me, but, if he did, it was burned up with my papers when they burned in 1873.” Mr. Nelson, after stating that he executed the quitclaim deed to plaintiff, says: “Have no recollection of my making any sale and conveyance of the land alluded to to Sylvester A. Hamlin.” He further says that, if Mr. Hamlin would say under oath that he purchased the land, “he ought to know, and I would give it considerable weight, but should think he would have a deed.” He further states that he might have sold and conveyed the land to Hamlin and have forgotten it. Mr. Nelson left Hardin county in 1870, and Mr. Hamlin left it in 1872, and both have since resided in distant states. The six acres in question are separated from the rest of the quarter section by the Iowa river, and are of but little value aside from the timber upon them, most of which was removed prior to 1873. When Mr. Nelson left, in 1870, there was timber on the land, and, if he continued to own it, it is somewhat remarkable that he should have given no further attention to the land until applied to by the plaintiff to purchase it in July, 1889. We have no doubt but that Mr. Hamlin purchased and took possession of the land, paid taxes thereon, and took timber therefrom up to 1872, when he conveyed to Mr. Butler. It is fair to presume that, having purchased the land, Nelson executed a deed to Hamlin in pursuance of the purchase. The absence of the deed is accounted for by the statement of Hamlin that his papers were burned in 1873. If it be true that Nelson sold to Hamlin, but did not execute a deed, the sale, being accompanied with possession with the consent of Nelson, must be upheld under our statute. Hamilton v. Wright, 30 Iowa, 481; Hughes v. Lindsey, 31 Iowa, 332; Tuttle v. Becker, 47 Iowa, 487.

Our next inquiry is as to plaintiff's rights under his quitclaim deed as against this chain of title to the defendant; or, in other words, as against the unrecorded conveyance from Nelson to Hamlin. Steele v. Bank, 79 Iowa, 339, 44 N. W. 564, fully answers this inquiry. It is there held that such a deed only conveys the interest of the grantor, whatever it may be. “It in no sense purports to convey a title, not even by inference. * * * The deed is itself a...