Witt v. Witt

• Decision Date: 12 February 1916
• Docket Number: 30733,30728
• Citation: 156 N.W. 321,174 Iowa 173
• Parties: HERMAN WITT, Appellant, v. FRITZ GEORGE WITT, Appellee (and five other cases)
• Court: Iowa Supreme Court

156 N.W. 321

174 Iowa 173

HERMAN WITT, Appellant, v. FRITZ GEORGE WITT, Appellee (and five other cases)

No. 30733, 30728

Supreme Court of Iowa, Des Moines

February 12, 1916

Appeal from Sioux District Court.--WILLIAM HUTCHINSON, Judge.

THE several cases above entitled, as presented to this court involve the same questions of law and fact and have been submitted together. The plaintiff, by warranty deed, made and executed separate deeds of conveyance of as many different tracts of land to the defendants, who are his children and grandchildren. Some four years later, he brought this suit in equity to set aside all said conveyances, alleging as ground for such relief that, at the time of making them, he desired and intended to make a will only, and that, by reason of his own lack of knowledge and his inexperience and his inability to fully understand the language employed and by reason of the mistake of the scrivener who prepared the instruments deeds were drawn and executed and placed of record. He further alleges that it was fully understood in each case by both grantor and grantee that such deed was testamentary only and was not intended to pass and did not pass any present interest in the land to the grantee. Because of such alleged material mistake and to remove the cloud so created upon his title, he asks that the conveyances be held for naught and the title be quieted in himself. The trial court in each case dismissed the petition, and the plaintiff appeals.

Affirmed.

Snell & Randall, for appellant.

Van Oosterhout & Kolyn, Gerrit Klay, Hutchinson & Gantt, and Heald & Cook, for appellees.

WEAVER J. EVANS, C. J., DEEMER and PRESTON, JJ., concur.

OPINION

WEAVER, J.

The argument for appellant is limited to the following points: (1) That it clearly appears that the instrument in each case was made with no intention to pass a present interest; that it was testamentary in character and should be held not to effect a conveyance; (2) that, by mistake of the scrivener, the proper words to express the meaning and intent of the appellant were not employed in drawing the papers, and that, by reason of plaintiff's inability to read the English language, he was not negligent in failing to discover the mistake or in believing that the instrument was testamentary in character; and (3) that there was no delivery of the deeds.

I. The first and second propositions may be considered together. There is nothing whatever in the language of the conveyances indicating a mere testamentary purpose. They are, in form at least, deeds of conveyance pure and simple, although some of them contain a clause intended to reserve or control the possession of the property, during the life of the grantor. Manifestly, and under familiar rules, a deed of conveyance sufficient upon its face to vest title in the grantee can be deprived of its effective force and converted into a mere testamentary promise, revocable at any time by the grantor, only upon clear and convincing evidence. The trial court found that plaintiff had failed in this respect, and we think the conclusion so announced is inevitable upon the record.

It appears without substantial dispute that plaintiff, a man then considerably advanced in years, was about to go to a hospital for surgical treatment. He appears to have consulted one Gearhart, a conveyancer, who has since died, concerning the disposition of his property, with a view to the possibility of a fatal result of the operation which he was to undergo. He now says that the advice he sought was with respect to the making of a will, and that he understood that the result of the transaction and the effect of the papers made was to provide a mere testamentary provision, by which his property was to be disposed of, in case of his death. But the admitted facts conclusively show that his...