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Edwin Ostenson v. O. R. Severson
Sherwin, J.—
'Upon the trial the defendant objected to the use of depositions taken within the State, because of the insufficiency of the notice. No exceptions to the depo
[198] sitions were filed as required by section 4712 of the Code, and the objections were therefore rightly overruled. Pilmer v. Bank, 16 Iowa, 321.
The deed from the defendant, O. E. Severson, to his wife is absolute in form, and recites a consideration of $5,000 paid to the grantor. That an express trust cannot be proven by parol is well settled. Gregory v. Bowlsby, 115 Iowa, 327; Rogers v. McFarland, 89 Iowa, 286. The conveyance was directly from Severson to his wife some years after he had purchased and acquired the title to the land, hence it is not a case for the application of the rule obtaining where a purchase is made and the price paid by one and the title passes to another. Gregory v. Bowlsby, supra. The deed itself precludes parol proof of want of consideration for the purpose of establishing a resulting trust. It is absolute on its face, and, though there may not- have been any consideration therefor, it recites one, and the presumption is conclusive, in the absence of fraud, that the grantee is to take the beneficial estate, and the recital cannot be contradicted by parol evidence of a different agreement. Acker v. Priest, 92 Iowa, 610; Andrew v. Andrew, 114 Iowa, 524; Gregory v. Bowlsby, supra.
The defendant can have no vendor’s lien for. the purchase price, because under his own theory of the case there was never any agreement to pay anything therefor; in other words, his entire contention is that the conveyance was voluntary on his part, and without any sort of an agreement with his wife. The judgment is clearly right, and it is affirmed.
The appellee filed an amended abstract of some thirty pages, in which the questions and answers of the several witnesses are set out.. This was unnecessary, and the appellant’s motion to tax the cost thereof to the appellee is sustained to the extent of taxing him with four-fifths thereof. — Affirmed.