Savery v. Browning

Dillon, J. 1. Liens: attachment and unrecorded deed. -1. As the plaintiff’s deed from Stevens was of date prior to the levy of the attachment, and as it was recorded prior to defendant’s purchase under his * * execution, the plaintiff’s title is, under the decis\ ± 7 ions in this State, the better one. This is upon the assumption that the plaintiff’s deed was executed and delivered to him before the defendant’s attachment was levied, and that it was not fraudulent as to the creditors of Stevens. Norton, Jewett & Busby v. Williams, 9 Iowa, 528; Welton v. Tizzard, 15 Id., and prior cases there cited. 2. Evidence: execution of deed. II. On the trial, the deed from Stevens to Savery, of April 18th, 1856, was offered in evidence. The defendant objected, on the ground “that its genuineness was denied by the answer under oath, and its genuineness and validity must first be proven by the plaintiff before the same could go in evidence in the case.” The court overruled the objection, and permitted the deed to be read in evidence without such proof, to which the defendant excepted at the time. We do not understand that the answer denies .the execution of the deed in such a sense as to require independent proof of its execution. The answer denies that, for a valuable consideration, Stevens conveyed to the plaintiff. Other portions of the answer impliedly admit the existence of the deed. The signature was not denied. Being duly acknowledged, its due execution not being denied under oath, it was properly admitted to be read in evidence, without further proof. Rev., §§ 4001, 2967; and see Manning & Caldwell v. Perkins, 16 Iowa, 71. 3. - date. III. The plaintiff proved by the records the defendant’s attachment, judgment, execution, sheriff’s sale and deed, as before stated, and his deed from Stevens of date April 18th, 1856, which was read in evidence. This was all the testimony offered in the cause. The defendant now makes the point, that while the deed of [249] April 18th, 1856, might he prima facie evidence as against Stevens; that it was executed and delivered, as of the date it purports to be; and that the consideration named had been paid by the plaintiff, and received by Stevens; it is not even prima facie evidence of these facts as against creditors of Stevens. In other words, the defendant contends that, as against him, the burden is on the plaintiff to show by evidence aliunde: First. That the deed was executed and delivered before the date of the defendant’s attachment; and, Second. That it was founded upon a valuable consideration. The plaintiff maintains that the onus in these respects is upon the defendant. Upon this point the authorities are not in accord. The weight of authority, and the better reasoning, we think, are with the plaintiff, the more especially where, as in this instance (and further we are not called upon to decide), there is no proof that the attachment or execution plaintiff was a creditor at the date when the prior conveyance purports to have been made and acknowledged. (De Bosse v. Young, 14 Ala., 189; Falkner v. Leith, 15 Id., 9; Hundley v. Buckner, 6 Sin. & Mar., 70; Brown v. Bartee, 10 Id., 268, denying McCain v. Wood, 4 Ala., where a different result was reached.) Mr. Best, in his Treatise on Presumptions, in considering “ Presumptions drawn from the habits of society,” says: “It may be stated, as a general rule, th^it, prima facie, all documents must be taken to have been made on the day they bear date. * * * So a deed is presumed to have been executed (Anderson v. Weston, 6 Bing. N. C., 296) and delivered on the day it is dated,” citing Stone v. Grebbum, 1 Ro. R., 3, pl. 5; Offley v. Hicks, Cro. Jac., 264; Best on Pr., § 133, p. 181 (Eng. ed.). It will be seen by the authorities cited below, that this rule is generally recognized in this country. In the case at bar, Savery the grantee being in possession of the deed duly acknowledged, this [250] furnishes a presumption, though not a conclusive one, that it was delivered to him. (Firemen's Insurance Company v. McMillan, 29 Ala., 147, and cases cited on p. 160; Dawson v. Hall, 2 Gibbs (Mich.), 390; Chandler v. Temple, 4 Cush., 285 ; Houston v. Stanton, 11 Ala., 412; Den v. Furlee, 1 N. J., 279; Insurance Company v. Cole, 4 Flor., 859; Green v. Yarrell, 6 Mo., 326; Foster v. Perkins, 42 Maine, 168; Loomis v. Pingree, 43 Id., 297; Genter v. Morrison, 31 Barb., 155; 1 Denio, 323; Bensley v. Atwill, 12 Cal., 231.) So a similar prima facie presumption of delivery arises from the fact that a deed duly made and acknowledged has been recorded. (Elsie v. Metcalf, 1 Denio, 323; 31 Barb., 155; Haines v. Norton, 16 Id., 264; Boardman v. Dean, 34 Penn., 252; Bullitt v. Taylor, 34 Miss. (5 George), 708; 37 Id., 492; Balbec v. Donaldson, 2 Grant’s Cas. (Pa.), 459; Ingraham v. Grigg, 13 S. & M., 22; Rowell v. Hayden, 40 Maine, 582; Mitchell v. Ryan, 3 Ohio St., 377, and cases there cited, and those supra.) For the reason assigned by Mr. Best, supra, and for the. further reason, that the acts of persons are presumed to be consistent with truth, in the absence of motives to falsify, and for the kindred reason, that fraud is not to be presumed, the presumption of law is, there being nothing in the particular case to repel or rebut it, that a deed was not only executed but delivered at its date, and upon the consideration recited therein, and this applies as against creditors coming in or claiming under the grantor, certainly as against persons not shown to be creditors of the grantor at the time of the deed. This presumption has been applied in a great variety of cases. (De Bosse v. Young, 14 Ala., 139; Hundley v. Buckner, 6 Sm. & Mar., 70; (10 Ed., 268); Ford v. Gregory, 10 Ben Mon., 175; McConnell v. Brown, Litt. Sel. Cas. (Ky.), 454. On one point, compare last two cases with Henderson v. Major, 8 Md. Rep., 352; Barry v. Hoffman, 6 Md. Rep., [251] 78 ; Elsey v. Metcalf, 1 Denio, 323; Haines v. Norton, 16 Barb., 264; Swetzer v. Lowell, 33 Maine, 464; Syerly v. Wheeler, 12 Ind. (Law), N. C., 290; Newlin v. Osborne, 4 Jones (Law), N. C., 157 ; Castigan v. Gould, 5 Denio, 290; contra, Kimball v. Fenner, 12 N. H., 248; and see 2 L. Cas. in Eq., 124.) This rule negatives the idea of the existence of any presumption of law, that the date of filing for record is prima fade the time of delivery. (Bull v. Griswold, 19 Ill., 631, 634. The case of Carson v. Foley, 1 Iowa, 524, is substantially a decision against the appellant’s theory.) 4 Pleading: replication. IT. The appellant’s point, that the answer sets up new matter in the nature of a cross-petition under oath, and fhat these allegations required a replication, or otherwise they are admitted, has no ground to rest upon. By reference to the statement, it will be seen that the answer neither sets up a counterclaim, cross-demand, or set-off. No replication is necessary. 5. Equity: adequate remedy at law. T. The appellant next claims that the plaintiff “had an adequate remedy at law.” The plaintiff’s case is fully set forth in his petition. Suppose, for the argument, that the plaintiff could have enforced and settled his rights by an action of ejectment, or by resorting to the special proceeding authorized by § 3602 of the Revision. Still no objection of this kind, so far as the record shows, was taken in the court below. If it had been, the error could have been corrected by amendment. That a party has an adequate remedy at law is, under our statute, no longer a ground for the abatement or dismissal of the action (Rev., § 2613), especially in the appellate court, where no such claim is made in the answer, and, so far as the record shows, at any stage of the proceedings in the court below. Affirmed.