Sherwin, J. —
Thomas J. Brown died in February, [216]*2161907. He was the owner of the land involved in this controversy until some time in the early part of September, 1905, at which time he conveyed it to the defendants herein by a deed, which was duly executed and recorded in Guthrie County. The plaintiff bases this action for partition upon the ground that she was the legal wife of Thos. J. Brown at the time of the conveyance in question, and that she did not join in the deed conveying the land. If this claim be sustained, she was and is entitled, as the widow of Thos. J. Brown, to an undivided one-third interest in said land. The plaintiff claims that she entered into a marriage contract, which was not ceremonial, with Thos. J. Brown, on the 23d of October, 1900, and that thereafter, until the time of his death in 1907, they lived and cohabited together as husband and wife, and that such marriage agreement, followed by cohabitation, constituted a common-law marriage, and that because of such marriage she is entitled to claim an interest in said land as his widow. She further pleads that on the 31st day oí October, 1905, a ceremonial marriage between her and Thos. J. Brown was solemnized, and that at the time of said second marriage Thos. J. Brown was the owner of the real estate in question; he having at that time never executed a completed conveyance thereof. The trial court found that there had been no delivery of the deed in question, nor any intention to deliver the same prior to the ceremonial marriage to which we 'have referred, and that the plaintiff was entitled to a one-third interest in the land in question, and a partition thereof was ordered by a sale of the premises. The appellants have appealed from this finding of the trial court. The trial court further found against the plaintiff’s claim that there had been a common-law marriage in 1900, and from this finding the plaintiff appeals.
[217] 1. Deeds: delivery: evidence: dower. [216] We shall first discuss the' question of the delivery of the deed. As we understand the record, the defendants [217] are grandchildren of the deceased, Thos. J. Brown, and at the time of the execution and delivery of the deed in question they were all residents of Kansas. ' The deed was signed and acknowledged on the 27th day of June, 1905, and remained in the physical possession of the grantor, Thos. J. Brown, until the 2d day of September, 1905, when it was delivered to the proper officers of the county to be recorded. It was entered by the auditor of the county for taxation on the same day, and thereafter, on the same day, it was duly filed for record in the recorder’s office and recorded. After it had been recorded it was taken from that office by the grantor, Thos. J. Brown, and he kept it in his possession until the 8th of September, 1905, at which time he inclosed it with a letter to some of the grantees, the defendants herein. A recitation of the above facts concerning the making, recording and delivery of the deed would, in themselves alone be sufficient to sustain the plaintiff’s claim that there had in fact been no ■ delivery of the deed prior to the ceremonial marriage, on the 31st of August, 1905 j but, to overcome the force of these circumstances, the appellants rely upon certain letters, which the record shows were written to some of them by the deceased during the summer and fall of 1905, and prior to the 31st day of August, and upon a letter claimed to have been written by him, but lost after its receipt, and further upon a transaction between one of the defendants herein, Almon Edwin North, and the deceased, alleged to have taken place some time about the 25th of August,• 1905, from which the conclusion is sought to be established that the deed in question was then delivered to Almon Edwin North for himself and his co-grantees.
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Sherwin, J. —
Thomas J. Brown died in February, [216]*2161907. He was the owner of the land involved in this controversy until some time in the early part of September, 1905, at which time he conveyed it to the defendants herein by a deed, which was duly executed and recorded in Guthrie County. The plaintiff bases this action for partition upon the ground that she was the legal wife of Thos. J. Brown at the time of the conveyance in question, and that she did not join in the deed conveying the land. If this claim be sustained, she was and is entitled, as the widow of Thos. J. Brown, to an undivided one-third interest in said land. The plaintiff claims that she entered into a marriage contract, which was not ceremonial, with Thos. J. Brown, on the 23d of October, 1900, and that thereafter, until the time of his death in 1907, they lived and cohabited together as husband and wife, and that such marriage agreement, followed by cohabitation, constituted a common-law marriage, and that because of such marriage she is entitled to claim an interest in said land as his widow. She further pleads that on the 31st day oí October, 1905, a ceremonial marriage between her and Thos. J. Brown was solemnized, and that at the time of said second marriage Thos. J. Brown was the owner of the real estate in question; he having at that time never executed a completed conveyance thereof. The trial court found that there had been no delivery of the deed in question, nor any intention to deliver the same prior to the ceremonial marriage to which we 'have referred, and that the plaintiff was entitled to a one-third interest in the land in question, and a partition thereof was ordered by a sale of the premises. The appellants have appealed from this finding of the trial court. The trial court further found against the plaintiff’s claim that there had been a common-law marriage in 1900, and from this finding the plaintiff appeals.
[217] 1. Deeds: delivery: evidence: dower. [216] We shall first discuss the' question of the delivery of the deed. As we understand the record, the defendants [217] are grandchildren of the deceased, Thos. J. Brown, and at the time of the execution and delivery of the deed in question they were all residents of Kansas. ' The deed was signed and acknowledged on the 27th day of June, 1905, and remained in the physical possession of the grantor, Thos. J. Brown, until the 2d day of September, 1905, when it was delivered to the proper officers of the county to be recorded. It was entered by the auditor of the county for taxation on the same day, and thereafter, on the same day, it was duly filed for record in the recorder’s office and recorded. After it had been recorded it was taken from that office by the grantor, Thos. J. Brown, and he kept it in his possession until the 8th of September, 1905, at which time he inclosed it with a letter to some of the grantees, the defendants herein. A recitation of the above facts concerning the making, recording and delivery of the deed would, in themselves alone be sufficient to sustain the plaintiff’s claim that there had in fact been no ■ delivery of the deed prior to the ceremonial marriage, on the 31st of August, 1905 j but, to overcome the force of these circumstances, the appellants rely upon certain letters, which the record shows were written to some of them by the deceased during the summer and fall of 1905, and prior to the 31st day of August, and upon a letter claimed to have been written by him, but lost after its receipt, and further upon a transaction between one of the defendants herein, Almon Edwin North, and the deceased, alleged to have taken place some time about the 25th of August,• 1905, from which the conclusion is sought to be established that the deed in question was then delivered to Almon Edwin North for himself and his co-grantees.
It would be impossible, within the proper limits of this opinion, to set out the material portions of the correspondence relied upon, or to give extended portions of the evidence which it was claimed supported the contention of [218] delivery prior to the 2d of September, 1905, and hence we shall state only our conclusions from a careful reading and consideration of all the testimony in the case. While some of the letters from Thos. J. Brown to some of these defendants, or to their parents, clearly indicate an intention on his part to make them a gift of some of the land in the future, there is not in the whole correspondence a word from which an inference may be drawn that he intended to make á present gift. His letters all refer to action that he may take in the future and do not signify that the gift will be made, if made at all, at any particular time. The transaction and the conversation claimed to have taken place between Almon Edwin North and the deceased in August, 1905, even if considered as proven by competent testimony, fall far short of sustaining the appellant’s claim of a delivery of the deed at that time, or of showing an intention to make a delivery at that time. On the contrary, there is much in the transaction as related, when it is considered in connection with the grantor’s subsequent acts and the letter written by him to the appellants which accompanied the deed, showing a clear intent on the grantor’s part, not to make an immediate delivery of the deed. That Almon E. North understood that the deed was not delivered to him in August when he was at his grandfather’s in Guthrie County is indicated by his letter to his grandfather acknowledging the receipt of the deed. Moreover, there is undisputed evidence in the record that after the visit of said North in August, 1905, Brown leased the land to a third party, and’in all respects treated it as his own, which he could not, and probably would not, have done had he delivered the' deed, or intended a delivery thereof, at the time of Almon E. North’s visit to him. In addition to this, it is conclusively shown by the uncontradicted evidence that on the day before the cerem'onial marriage between the plaintiff and Brown, and after-their marriage, he asked [219] her to sign the deed so that her interest in the land would be released. Mr. Brown was at that time a man past seventy years of age. He had had large business experience, and was then, and had been for many years, the owner of considerable real property, most of which was rented, and all of which he had immediate charge of. It is to be presumed that he knew the law governing the rights of Mrs. Brown as his wife, and it would certainly be a violent presumption to say that he did not know that, if he had delivered the deed to Almon E. North, it would have made a complete conveyance of the land, and that, so far as the ceremonial marriage between him and the plaintiff was concerned, she could claim no interest in the land as his widow. The question whether or not there had been a delivery of a deed is one largely of intent, which intent is to be gathered from the facts and circumstances surrounding the transaction in connection with the positive proof. This principle of law is thoroughly settled in this and other jurisdictions, but see Forman v. Archer, 130 Iowa, 19; Kneeland v. Cowperthwaite, 138 Iowa, 193; Criswell v. Criswell, 138 Iowa, 607. Bearing this in mind as applied to the testimony in this case, we are thoroughly convinced that there was no delivery of the deed in the case prior to the 31st day of August, 1905, and that the trial court rightly found the plaintiff entitled to an interest in the land in question as the widow of Thos. J. 'Brown.
Our conclusion on this branch of the case really makes it unnecessary to consider the question raised on the plaintiff’s appeal, and we shall enter upon no extended -discussion thereof. We may properly say, however, that were it necessary to determine the question, we should hesitate long before reaching the conclusion announced by the trial court. The marriage agreement relied upon by the plaintiff was clearly proven, and it was also clearly proven that the agreement was followed by [220] cohabitation. It is true that the parties did not occupy the same sleeping apartments during the -time, nor did they make generally public the fact of such marriage, but it is shown that the plaintiff lived in one of Brown’s houses, and that after said alleged agreement he lived there to all intents and purposes, except that he slept in a room, which he had long theretofore occupied, in one of his business buildings, but the testimony shows that in all other respects there was the cohabitation required by the law to consummate and make effective a common-law marriage.
2. Partition: sale:sreview of ordei. One other point is raised by the appellants that we shall briefly discuss. The partition was ordered by a sale of the real estate in question, and referees were appointed to appraise and make such sale. The trial court also authorized the referees to make the saqe partly on time, if necessary, but required a cash payment of about 40 percent of the price of the land and a mortgage back for the balance, with interest on the deferred payments of 6 percent, the deferred payments, if any, not to run over three years. We see no reason for disturbing the order of the trial court. O* course the referees will sell for cash, if it can be done to advantage. If a cash sale can not be so made, it will be to the best interests of all parties to make some concessions both, as to credit and time. Furthermore, the matter is still under the control of the trial court, and such further order may be made as to the sale and the terms thereof as shall seem for the best interests of all parties.
The judgment of the district court is affirmed.