Parlin, Orensdorff & Martin Co. v. Daniels

Ladd, J. 1 Possession of the deed was prima facie evidence of its delivery, and, but for circumstances indicating the contrary, it would be assumed to have been delivered at the time of its date. Furenes v. Eide, 109 Iowa, 511; Robinson v. Gould, 26 Iowa, 89. See cases collected in note tó Blanchard v. Tyler, 86 Am. Dec. 63. Though dated February 18, 1896, it was not recorded until March 8, 1897. When acknowledged, does not appear. January 29, 1897, Daniels was at Collins, and rented the lot as owner, signing a lease as such, and received rent for one quarter after the levy of the writ, February 5th previous. Thereafter, and up to April 1, 1898, the rent was paid to H. K. Poorbaugh, son of intervener, and employe of the defendant. He must be assumed, in the absence of any explanation, to have been acting therein for Daniels, as the obligation of the lessee runs to him. A son of intervener, who was manager of the defendant’s hardware business at Collins, testified that he had learned something of this sale in February or January, 1897, and that he “did not know that any one owns the place but A. O. Daniels, and father, intervener herein, did not purchase the same.” The evidence is very meagter, and we are not sure the witness meant to be understood as saying his father had not in fact purchased, or that he did not know that he had not. While the recording of a deed is not essential as against an attaching creditor, its delivery is. And we think the evidence in this-case, in the absence of any explanation, may well be deemed sufficient to overcome the presumption arising from the possession of the deed at the trial, and to indicate it did not pass to Poorbaugh before it was filed for record. The grantee was the defendant’s father-in-law. The deed was withheld from l’ecord until needed to protect the property in Daniel’s possession, and during all the time' he controlled1 and leased the lot as his own and collected the rents. 643 2 But even if this presumption of delivery has not been overcome, the possession of the land, with the unequivocal acts of ownership over it, is a badge of fraud, which, in connection with the failure to record the deed, and this relationship of the parties to it, in the absence of all explanation, authorized the court to conclude that intervener held the poperty in secret trust for the benefit of the defendant. See Wait Fraudulent Conveyance, section 265; Bump Fraudulent Conveyance, section 62. The •petition of intervention should have been dismissed.— Unversed.