Tucker v. Glew

139 N.W. 565, 158 Iowa 231

• Court: Supreme Court of Iowa
• Decided: January 21, 1913
• Status: Published

Opinion

Deemer, J.

William W. Haller was at one time the owner of the property in controversy, which is described as follows:

Lot 2 of Walker’s addition to the town of Farley, lots 3 and 6 of a Subd. of part of the S. % S. W. % of the N. E. % of Sec. 7 and the E. y2 of lot 2 of a Subd. of the N. y2 of the S. W. % of the N. E. % of Sec. 7, Twp. 88 N., R. 1 W. of 5th P. M.

This was all the property, real or personal, owned by him on the 14th day of November, 1910. On that date he appears to have executed a deed to plaintiff of certain property, which he described as follows:

The E. y2 of lot 2 of Lawrence MeGuigan’s Subd., also lot 3 and the N. y2 of lot 6 and the S. y2 of lot 6 of Walker’s Subd. and lot No. 2 of Walker’s Add. to Parley, situate in the S. W. % of the N. E. 14 of Sec. 7, Twp. 88 N., E. 1 W. of the 5th P. M.

It is alleged in the petition that:

The land described in said deed was and is identically the same as the land owned by the said Wm. W. Haller in his lifetime, and intended to be conveyed by said deed of conveyance to this plaintiff; that the E. y2 of lot 2 of Lawrence MeGuigan’s subdivision is the same lot as the E. y2 of lot 2 of a subdivision of the N. y2 of the S. W. 14 of the N. E. % of section 7, and lots 3 and 6, described in said deed of Walker’s subdivision, are the same as lots 3 and 6 of the subdivision of the S. % of the S. W. % of the N. E. x/4 of section 7, and lot 2 of Walker’s addition to Farley is a correct description of said lot 2 owned by the said Wm. W. Haller in his lifetime, and as situated in the S. W. % of the N. E. ty. of section 7; that some question having arisen as to the identity of said description of real estate in the deed of conveyance from said Wm. W. Haller in his lifetime to plaintiff with the lots in the subdivision of parts of the N. y2 of the S. W. % of the N. E. 14 of section 7 and the S. y2 of the S. W. of the N. E. of section 7, as hereinbefore described, plaintiff avers the identity of said descriptions: and that whatever technical difference there was or is in the same the land described in the said deed of Wm. W. Haller to plaintiff was the land owned by him in said section 7, and none other, was the homestead of the said Wm. W. Haller in his lifetime, and was intended by the conveyance to this plaintiff to be conveyed by the deed aforesaid.

1. Repormation of instruments : burden of proof.

I. The deed to which we have referred purports to have been signed on the 14th day of November, 1901, and it was acknowledged by a notary on that day, although it was not filed for record until the [[[h day of November, 1907. It recites a consideration of $2,500 in hand paid by plaintiff, and contains full covenants of warranty. Defendants deny tbe execution or delivery of the deed, and aver that no consideration ever passed for the same. They further say that no mistake, is shown in the description by that quantity of testimony required, and claim that most, if not all, of the testimony offered by plaintiff to prove the alleged mistake was incompetent, and the witnesses incompetent, under section 4604 of the Code. The burden, of course, is upon plaintiff to show the execution and delivery of the deed, and also to prove by clear and satisfactory testimony the alleged mistake.

2. Conveyances : delivery presumption. But having shown a duly executed deed and produced evidence of the recordation thereof, presumption of delivery arises; and this delivery not later than the acknowledgment of the instrument. McGee v. Allison, 94 Iowa, 531; Robinson v. Gould, 26 Iowa, 89; Nowlen v. Nowlen, 122 Iowa, 542, and eases cited. Of course, nondelivery may be shown; for the presumption is not conclusive. The other testimony, instead of negativing the presumption, tends to support it; and there is no diffculty in finding a delivery of the deed.

3. Same : recital of consideration. effect. II. A consideration is presumed; but were that not so the deed cannot be defeated by showing want of consideration. It recites a valuable conderation in hand paid, and cannot be-converted into a trust or made testamentary in character by a showing of no consideration. This rule is so familiar that no eases need be cited in support thereof.

4. Reformation OF INSTRUMENTS : evidence. III. The burden is upon plaintiff to show a misdescription of the property by competent testimony and from competent witnesses; and this, we think, she did. That deceased intended his deed to have some effect, we must assume. Tie had but the one piece of property, and this was his “home place.” He frequently spoke of having deeded this home place to plaintiff. These declarations he made to perfectly competent witnesses. Again, in December of 1905, he attempted to make a will, and in this he said: “What remains aside from my homestead which I have deeded to my youngest daughter, Ellen J. Tucker, my little dab of money which is left after the funeral expenses are paid, $300.00 must be paid to Alta Glew .for her mother’s share.” He also gave reasons for deeding the land to plaintiff; and on the whole record it is reasonably clear that he made a technical mistake in the description,' and that the deed was correctly reformed as prayed.

No error appears, and the decree must be, and it is,' Affirmed.