Craven v. Winter

Beck, J. — We find it necessary to discuss but two questions raised by the assignment of errors, and considered in the brief of plaintiff’s counsel. I. It is first insisted by counsel that the deed of April 17, 1845, by William Craven, the father, to his son W. P. Craven, is a- testamentary writing and therefore revocable, and was in fact revoked by the deed to plaintiff executed October 30,1867. -We are required to consider the character and effect of the instrument in question. Except for the clause of the deed reserving possession of the premises during the life of the grantor, and the grantee’s mother, the instrument is not different from an ordinary conveyance. This clause is the foundation of the claim that the instrument is a testamentary writing, and not a deed. It therefore demands attention. It is not important to determine, in view of the decision of the court below and the qiiestions brought before us upon the appeal, the effect of the reservation, the character of the estate created thereby, or the parties [478] to whom it is reserved, further than to hold that under it the grantee could not enter into the possession of the premises during the life of his father and mother. The District Court' held that, by the provision, a life estate was reserved and vested jointly in the father and mother; that, at the death of the father, the right to the possession of the whole of the land continued in the mother during her life. The correctness of this decision is not questioned by defendants, or rather they raise no objection to the mother holding possession of the land during her life. They have not appealed, and are therefore not in a position to call in question the correctness of the judgment. It may be conceded for the purposes of this case, that the mother' is entitled to the possession of the land during her life. We are now to determine whether the instrument in question is a deed, or a testamentary paper revocable at the will of the maker. 1. conveyANCE:will: deed. A rule recognized by this court, which seems to have the united support of the authorities, furnishes an unerring test to determine the character of the instrument.' It is t this: “ It the instrument passess a present interest, although the right to 'its possession and enjoyment, may not occur till some future time, it is a deed or contract; but if the instrument does not pass an interest or right till the death of the maker, it is a will or testamentary paper.” Burlington University v. Barrett, 22 Iowa, 72. Applying this rule to the instrument under consideration, we have no difficulty in coming to the conclusion, upon the very words of the paper, and of the reservation in question,' that it passed a present interest to the grantee. Whatever interest was held by the father, was by the instrument vested in the son, charged however with the life estate reserved in the deed. Upon the face of the instrument itself there is no more ground for holding it to be a testamentary writing, than can be found in all deeds wherein may be reserved estates less than those conveyed. The fact that a life estate is reserved in a deed conveying the fee-simple title, is certainly no ground for construing the instrument to be testarhentary and revocable.- [479] But the intention of the parties may be ascertained from the entire transaction, to aid in the construction of the instrument. And it may be ascertained by extrinsic circumstances surrounding the transaction. The situation of the parties and the objects in view inducing the execution of the instrument may be considered in its construction. In support of the rule just announced, see the following cases decided by this court: Field v. Schucker, 14 Iowa, 119; Pilmer v. The Br. St. Bank, etc., 16 Iowa 321; Rindskof Bros. v. Barrett, 14 Iowa, 101; McCramey's Ex’r v. Griffin, 13 Iowa, 313; Karmuller v. Krotz, 18 Iowa, 352. Applying these rules of construction to the instrument in question, in the light of the facts before us as found by the District Court, we are of the opinion that it was the intention of the grantor to convey the fee simple title to the land in dispute to his son, reserving the possession as prescribed in the deed, during the lives of the grantor and his wife. It has been held that an instrument conveying property absolutely, but reserving possession and control in the grantor during his life is valid and irrevocable. Robey v. Harmon, 6 Gill., 464; Jackson v. Cutolpepper, 3 Kelly, 573; Robinson v. Schley, 6 Geo., 526; Jaggers v. Estes, 2 Strob. Eq., 378; McGlown v. McGlown, 17 Geo. 234; Williams v. Sullivan, 10 Richardson, 223. A deed referring to and incorporating a will is good even if the disposition of the property is to take effect in futuro. Dawson v. Dawson, Rice’s Eq., 260. g____ revocation. And when a deed conveys' lands for such uses as are set out in a will, neither deed nor will is revocable, if no po-^ej. 0f revocation is reserved in the deed. Mayor of Baltimore v. Williams, 6 Md., 235. The following cases support the doctrine recognized by this court as stated above: Thompson v. Johnson, 19 Ala., 59; Meek v. Holten, 22 Geo., 491; Daniel v. Veal, 32 Geo., 589; Johnson v. Hines, 31 Geo., 720. • II. It is insisted that the deed was never delivered, and is therefore inoperative. [480] 3_: deiivery: evidence, The instrument being in the custody of the grantee, is presume<l 1° have been delivered by the grantor, and accepted by the grantee at the date of its execution. Wolverton v, Collins, 34 Iowa, 238; Foley v. Howard, 8 Iowa, 56. It has been held that “when a deed, beneficial in its character to the grantee, has been properly acknowledged and recorded, the presumption of law in favor of the grantee is, that it has been delivered; and the burden of proof upon the party claiming the non-delivery, to clearly rebut the presumption.” Robinson v. Gould et al., 26 Iowa, 89. We are of the opinion that the facts found by the District Court do not overcome this presumption, but rather support it. The grantor delivered the deed to the wife of the grantee in his absence, with declarations to the effect that it was intended for his benefit; and without any intimation that it was to be retained by her for any purpose. We are certainly authorized to presume that the father intended the deed to be delivered by the wife to her husband. Considering the relation of husband and wife, it is not reasonable to suppose that she would be chosen by the grantor to hold the instrument had it been intended as an escrow, or if its delivery -was not at the time intended. Other facts found by the court below, strongly support this presumption. _. c011_ sideration. III. No question can be made as to the sufficiency of the consideration for the conveyance, as the rights of creditors of the grantee are not involved in the case. A conyeyance for the consideration of love and affection is good between the parties and against all others except subsequent purchasers without notice, and creditors. Mercer v. Mercer, 29 Iowa, 557; Moon v. Pierson, 6 Iowa, 279. IV. The consideration being sufficient, the estate granted to the son vested at once in him for his own use and benefit. The father, it may be admitted, retained an estate for life, but no use resulted to him as to the estate granted to the son. lienee the position of plaintiff’s counsel to .the effect that a use resulted to the father which drew the entire estate in the lands, is unsound. [481] use-__. dower. Y. At the date of the execution of the deed, 1845, the dower of the wife was an estate for life in one-third of the Conceding that the deed of 1867 passed all the interest of the wife of the grantor to plaintiff, and that her inchoate rights of dower, was conveyed thereby, which we by no means admit, the inchoate right of the wife to dower before the husband’s death appears to me not to be subject to grant or assignment. See Maguire v. Roggin, 44 Missouri, 502. That right is determined by the law in force at the date of the first deed. Lucas v. Sawyer, 17 Iowa, 517; O’Ferrall v. Simplot, 4 Iowa, 381; Davis v. O'Ferrall, 4 G. Greene, 168; Young v. Wolcott, 1 Iowa, 174. If plaintiff holds the dower estate, it is in one-third of the lands for the life of the dowress as fixed by the law in force in 1845. But the judgment of the court awards to plaintiff the possession of all of the lands during the life of the widow of the grantor in the two deeds. She therefore gains by the judgment a greater interest in the lands than she would be entitled, to, were the law so that dower could be passed by grant or assignment before the death of the husband — a question that we need not discuss. Plaintiff cannot, therefore, complain of the judgment of the court awarding her one-third of the lands for the life of the widow of the grantor, and as defendants have not apjiealed from the judgment, we are relieved of the duty of making inquiry as to its correctness in this respect. The foregoing discussion disposes of all the questions involved in the case. The judgment of the District Court is Affirmed.