Zuber v. Johnson

GRANGER, J. [275] — As to appellant Johnson, the only question is whether plaintiff is the head of a family, so that the property is a homestead. We need only say that the fact clearly appears that she is the head of a family, so as to be entitled to the homestead right. As to appellant Hughes, his rights depend on his being protected because of his purchase at the sale on execution. He relies on the then condition of the record, which showed the title in plaintiff, the deed from Gepford having been filed for record March 1, 1897, and his purchase being on the sixth of that same month. But appellant’s thought is that, the attachment having been levied November 5, 1896, when the title of record was in Gepford, the lien then attached, and that no [276] conveyance thereafter conld affect such a lien. Some other facts are important. Before the purchase by Hughes, he was informed that plaintiff claimed to own the property by virtue of an unrecorded deed; and on the day of the sale the sheriff, who held the bid of Hughes, was notified that plaintiff claimed the property as her homestead, and held it by warranty deed. It also appears that the deed then on record, although really executed March 1, 1897, was dated back to September 9, 1896 (the date of the conveyance by plaintiff to Gepford), and in the deed is the provision as to support from that date, at least, as a part consideration for the property, which, with the possession in the plaintiff, was sufficient to put Hughes on inquiry to know the facts. The record, as to the information it gave, was somewhat peculiar. The conveyance from plaintiff to Gepford was September 9, 1896, and the deed back to her, although made and filed March 1, 1897, was dated September 9, 1896; so-that, when Hughes made his purchase, the record disclosed facts to indicate that the conveyances to- and from Gepford were practically simultaneous, which, with the provisions as to support in the deed, and the possession of plaintiff, makes an unusually strong case of notice to put a party on inquiry. The case is in no way within the rule stated in May v. Sturdivant, 75 Iowa, 116; Bonnell v. Allerton, 51 Iowa, 166, and like cases. In Rogers v. Hussey, 36 Iowa, 664, from which appellant quotes, is this language: “The record title would fully explain the fact of possession. It would be natural and reasonable for any one, under such circumstances, to refer the fact of possession to the legal-title. No one "would think of inquiring whether there was not also an equitable title, antedating the legal title. If it is not probable and natural that such inquiry would be made,. the law does not require it to be made.” This case, in its facts, is somewhat the reverse of that. Here. the record condition is such that it plainly suggests the probable possession, at least, in plaintiff, at all times277 since the conveyance to her originally. Some importance is attached to the fact that Hughes was notified that plaintiff claimed by virtue of a warranty deed, and that such notice was not of an oral agreement. But the deed itself gave notice of an agreement, so that Hughes was put on inquiry to know what it was. Appellant misapprehends the rule stated in McCleery v. Wakefield, 76 Iowa, 529. It states the rule that “a purchaser is bound to take notice of the right under which one in possession claims,” but that “he is not chargeable with notice of a right or claim not asserted, or ■one which may subsequently accrue.” The notice here is of matters asserted and relied on. 2 II. It is claimed that the evidence to show the agreement of Gepford for support was inadmissible, because it ingrafted an express trust on the deed to him of September •9, 1896. The evidence shows the reverse of an attempt to create an express trust. Gepford had an equitable interest to secure his support. The purpose was to secure him in that interest, and nothing more. The intention was to reconvey at once, which was not done, because of sickness and inadvertence, and by the transaction merely to effect a security. The judgment is appiemed.