Shetler v. Stewart

133 Iowa 320

• Court: Supreme Court of Iowa
• Decided: May 10, 1906
• Status: Published

Opinions

Bishop, J.—

From the allegations made in the several petitions, and the admissions, contained in the answers filed thereto, it appears that George Shetler, a resident of Marshall-town, died on March 26, 1901, intestate. Pie left surviving him, as his only heirs at law two sons, James K. P. Shetler ¿nd George PL Shetler; one daughter, Samantha S. O. Weber; and one granddaughter, Addie Stewart, the only surviving child of Electa J. Hazen, a daughter of said George Shetler and deceased at and prior to his death. At the time of the death of said George Shetler the title to the several tracts of land involved in these actions stood in his name upon the records of Marshall' county. After the death of said George Shetler, and under circumstances hereinafter detailed, there was found a deed which had been formally executed and. acknowledged by him as of date April 11, 1892, and by the terms of which the real estate involved in the first of the above-entitled actions was conveyed to Electa Jane Hazen. Such deed was taken possession of by the defendant Addie Stewart, as the sole surviving heir of her mother, named therein as grantee, and placed of record. At the same time there was found a deed, formally executed and acknowledged, as of date January 1, 1898, by the terms of which the real estate involved in the second of the above entitled actions was conveyed to Samantha S. C. Weber. Such deed was taken possession, of by Mrs. Weber and placed of record. Subsequently, and before the commencement of this action, she conveyed to her daughter and co-defendant Bessie Weber. The contention of plaintiff, as to each of said deeds, is that while executed by George Shetler, the same never became effectual by a delivery accomplished during his lifetime. Accordingly it is insisted by plaintiff that the ownership of an undivided one-fourth interest in the respective properties became vested in his decedent at once upon the death of George Shetler. In the several answers the fact of delivery is asserted.

í Evidence-withSonesfnce deceased. I. George II. Shetler was made a party defendant to each of the actions, but did not appear in any way thereto. On the respective trials he was called as a witness by plaintiff, and> oyer objection of the answering defendants, was allowed to testify that for twenty-four years he and his father had occupied the same storeroom and office for business purposes; that in the office was a safe owned by the witness, but in which was a lock drawer used solely by his father for keeping private papers; that prior to the death of his father, he, the witness, was ignorant as to the contents of such drawer. Further,' the witness testified that on the morning after his father’s funeral a house servant brought to the store and gave into his charge a bunch of keys that had belonged to his father; that shortly thereafter his sister Mrs. Weber, with her daughter Bessie, came to the store and that he then in their presence unlocked the private drawer in the safe and found therein the deeds to Mrs. Hazen and Mrs. Weher for the properties in controversy, both of which deeds Mrs. Weber took away with her. The witness denied having any previous knowledge of the existence of such deeds.

The objection to the competency of the witness and his evidence was based on Code, section 4604. That section provides that no party to an action, or person interested in the event thereof, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such action deceased, against the heir at law, next of kin, assignee, etc., of such deceased person. Conceding, as we may, for the purpose of these cases that the provisions of the statute are-broad enough to include within its favor the grantees of a deceased person, still, we think, the testimony as here offered and introduced by plaintiff did not fall within the prohibition of the statute. It was not of, or concerning, any personal transaction or communication that this witness was interrogated. Nor was any such subject-matter included in the testimony given by him. The rule of the statute does not operate to close the mouth of a witness as to any matter of fact coming to his knowledge in any other way than through personal dealings with the deceased person, or communications made by the deceased to the witness in person. This is not only the language of the statute, but it is the thought of the cases. “ The theory ,of the law is to close the mouth of the living person as to a matter in which he had a part.” Here the witness not only took no part in the preparation and execution of the deeds, but he was ignorant of their existence until after his father’s death. McElhenney v. Hendricks, 82 Iowa, 657; Erusha v. Tomash, 98 Iowa, 510; Gable v. Hainer, 83 Iowa, 457; Sankey v. Cook, 82 Iowa, 125. We conclude that the testimony was properly brought into the record, and should be considered in disposing of the cases.

2. Deeds: presumption. II. The testimony of George H. Shetler, the substance of which we have already stated, stands alone as to the fact of finding the deeds, and respecting the time and manner of their coming into the possession of the defendants. Whatever may be said where the rights or interests of minor children, or persons of unsound mind, are involved, it is the undoubted rule of the cases, generally speaking, that the delivery of a deed to the grantee named or to some person for him is essential to the validity thereof. Without delivery there is no deed. Now the proof in these eases goes no farther than to show the execution of deeds which were found among the private papers of the grantor after his death. Under such circumtances the law presumes that no delivery had ever been made. Hutton v. Smith, 88 Iowa, 238; Miller v. Murfield, 79 Iowa, 64; Furnes v. Eide, 109 Iowa, 511. In this state of the record we reach the conclusion that the .deeds became as so much waste paper upon the happening of the death of the grantor, and defendants by securing possession thereof acquired no rights or title. The record shows that the conveyance from Mrs. Weber to her daughter Bessie was for the nominal consideration of $1, and as the latter was fully advised as to all facts respecting title, she can- have no higher rights than was possessed by her mother. ■ Motions were filed in this court in each case by appellees attacking the sufficiency of the record as presented by appellant. We find therein no merit, and they are overruled.

It follows, from what we have said, that in each case there should have been a decree in favor of plaintiff, and hence a reversal is called for on both appeals.— Reversed.