Wilson v. Carter

• Citation: 109 N.W. 886,132 Iowa 442
• Parties: WILLIAM C. WILSON v. J. H. CARTER AND A. W. JOHNSON, SHERIFF, Appellants
• Decision Date: 21 November 1906
• Court: United States State Supreme Court of Iowa

109 N.W. 886

132 Iowa 442

WILLIAM C. WILSON v. J. H. CARTER AND A. W. JOHNSON, SHERIFF, Appellants

Supreme Court of Iowa, Des Moines

November 21, 1906

Appeal from Butler District Court.--HON. C. H. KELLY, Judge.

SUIT to enjoin the defendants from selling real estate under execution. There was a judgment for the plaintiff, from which the defendants appeal.

Reversed.

George A. McIntyre and Courtright & Arbuckle, for appellants.

J. Y Hazelett and Alfred Grundy, for appellee.

SHERWIN J. WEAVER, J. (dissenting).

OPINION

SHERWIN, J.

Mrs. Mary Wilson was the owner of the S. E. 1/4 of section 12, township 91, range 16, in Butler county, Iowa, and on the 12th day of April, 1900, she executed a warranty deed in the usual form conveying said land to her son, William C. Wilson, the plaintiff in this action. The deed contained the following provision: "This conveyance is placed in escrow and shall be valid to pass the title to said lands upon its delivery to said grantee at or after my [the grantor's] decease, and the payment by grantee, within two years after my decease, of three hundred dollars to Caroline Dow and three hundred dollars to Mary Stigman, daughters of grantor herein; and said sums shall be a lien until paid, their payment being acknowledged by a release of said lien and recorded in the office of the recorder of deeds in Butler county, Iowa. Possession of above land shall pass to grantee on delivery of this deed from escrow on my decease." The deed was inclosed in an envelope by the scrivener, who indorsed on the envelope: "This contains a deed from Mary Wilson to Wm. C. Wilson, of the S. E. 1/4 12 91 16, in Butler county, Iowa. The deed is placed in the Cedar Falls National Bank in escrow, and to be delivered to Wm. C. Wilson on the death of said Mary Wilson." The envelope containing the deed was immediately delivered to the bank in the presence of the grantor, with a statement from her that "it was all right." More than three years thereafter Mrs. Wilson died without in the meantime having recalled the deed or asserted any further control over it. She left surviving her, as her sole heirs, the plaintiff, Chris. Wilson, another son, and two daughters. On the 3d of October, 1903, the day after Mrs. Wilson's death, the defendant Carter caused execution to issue on a judgment theretofore obtained against the son, Chris. Wilson, and a levy to be made on the land in question. The deed from Mary Wilson to the plaintiff was delivered to the plaintiff on the 6th day of October, following the levy.

The appellee contends, and the trial court evidently so found that the execution of the deed and its delivery to the bank, and subsequently to him, conveyed the land, to him in proesenti, and that the execution defendant, Chris. Wilson, had no interest therein at any time as the heir of Mary Wilson. This presents for our determination the important question whether the instrument in fact and in law operated to convey a present interest, with the possession and enjoyment thereof postponed until after the death of Mary Wilson, or whether, although a deed in form, it was nevertheless ineffective as a conveyance of the land. It is a well-settled rule that, when a deed is deposited with a third person for delivery to the grantee after the death of the grantor, it may, upon delivery to the grantee, pass a present interest. But in this, as in all like cases, the intent of the grantor is the controlling factor, and, where the instrument is unambiguous, such intent must be determined from the language of the instrument itself; hence each case must of necessity be governed by a construction of the particular instrument under consideration. These are familiar rules, which require no citation of cases to support them. Did Mary Wilson intend to pass a present interest in the land? If she did, the instrument will be given effect as a conveyance. If it passed no present interest, but was to be operative only on her death, then it is testamentary in...