Burch v. Nicholson

McClain, C. J. — In 1886 Allen Murphy died intestate, seised of the land in controversy, and leaving surviving him his widow, Deby Ann Murphy, six living children, and two grandchildren, the daughters' of a deceased daughter; the grandchildren being at that time minors; One of the ■ granddaughters, subsequently married, is the plaintiff in this action, and all the other heirs are defendants, Later in the same year all the children except Joshua [505] joined in a deed to their mother, Deby Ann Murphy, quit-claiming their interests to her in consideration of the sum of $1 to each in hand paid. A guardian having been appointed for the two grandchildren, their interests were by proceedings regular in form transferred to their grandmother for a purported consideration of $200. At the time these conveyances of their interests by the other heirs to the surviving widow were made, Joshua was in the insane hospital. In January, 1887, he returned from the hospital, and executed a quitclaim deed to his mother, but remained at home, and worked upon the farm for some years. In 1893 Joshua was again committed to the insane hospital, and since that time he is conceded to have been incurably insane. In the meantime a warranty deed from Dehy Ann Murphy to Joshua, purporting to be executed on January 7, 1891, was filed for record and duly recorded as of February 9, 1891. The controversy in this case is as to whether this deed was delivered to Joshua and vested in him sole title to the property. i. Conveyances: delivery: presumption: ac-dentaofCeproof’ I. • The recording of the deed duly executed by Deby Ann Murphy constituted presumptive, but not conclusive, . evidence of delivery to Joshua, the grantee named therein. The burden of showing that the deed was not . . . . m tact (delivered is upon appellants, and x x x 1 ^ey carL overcome the presumption of delivery only by clear and satisfactory evidence. As the deed recites a consideration in hand paid and apparently imposes no condition or obligation upon the grantee, it is presumed to have been beneficial to the grantee, and proof of his acceptance is unnecessary. Robinson v. Gould, 26 Iowa, 89. Therefore evidence that at the time the deed was recorded the grantee was of unsound mind and incapable of assuming obligations does not in itself tend to negative the delivery of the deed. Cecil v. Beaver, 28 Iowa, 241; Newton v. Bealer, 41 Iowa, 334; Palmer v. Palmer, 62 Iowa, 204; Foreman v. Archer, 130 [506] Iowa, 49. It may be .conceded that the deed does not purport to be a deed of gift, but the case of Robinson v. Gould, supra, is direct authority for the proposition that the recording of a warranty deed apparently not a deed of gift, the grantee being an adult and not so related to the grantor as that a gift would perhaps be implied, is nevertheless presumptive evidence of delivery, and, no condition or obligation on the grantee being imposed,, is presumed to be beneficial so that an acceptance will be implied, although there is no evidence that the grantee had knowledge of the recording or assented to the passing of the title to him; and in that case the court refused to consider the testimony of the grantor that he retained possession of the deed with the intent of retaining title as sufficient evidence to negative the delivery presumed from the recording. In stating the result of the rule announced in that case as applicable to circumstances quite similar to those of the case before us, the court used this language: The burden of proof, therefore, is on the plaintiff (the grantor) to establish the nondelivery of the deed; that is, to negative the presumed knowledge of the deed on the part of Anthony (the grantee) and his presumed assent to it. And as he seeks to divest an apparent title to land conveyed by a deed which had been on record over nine years before this suit was brought, and failed to bring suit until the grantee’s lips have been closed by death, it is incumbent on him to make out a case plain, clear, and decisive. Admitting, as we do, that the plaintiff’s proposition that his brother Anthony, though all the time living in the neighborhood, both of the plaintiff and the land, has never in fact had any notice of the deed, and hence never assented to it, finds very much support in the evidence, yet (and this is the distinct ground on which we place our decision) there is not the fullness and satisfactory degree of proof which courts ought to require to divest a title against heirs (of the grantee) presumptively conferred by a recorded deed of such long standing as the one which is in question in this ease. [507] The facts in. the case before ns are even more persuasive than those in the case last referred to. At the time of the recording of the deed Joshua was in fact living with his mother on the land and farming it, and was, in so far as the evidence discloses, competent to accept a conveyance. tions of former owner: admissibility. 2 Same- declaraThere is testimony as to declarations of the mother, which are certainly admissible as against the parties to this suit claiming as her heirs, that she treated Joshua as cap-able accepting the deed and advised him of its execution. Her declared purpose was to encourage him in the belief that he was the owner. Now Joshua’s lips are closed, not it is true 'by death, but quite as effectually, by incurable insanity, which became pronounced two years after the recording of the deed. The lips of the grantor have been closed by death, and as to her intentions we have no evidence save that afforded by her declarations made after the execution of the deed and testified to by the other heirs. So far as these declarations tend to negative the intent presumed from the recording of the deed, we think they are not competent to impeach Joshua’s title; but, if they were to be treated as competent, they go no further than to indicate a desire on the part of his mother to impress him with the thought that he had assumed responsibilities which he must discharge in order to realize the benefits of the transaction. 3‘ titledVaifdityevidence. It is plain that if the deed conferred a present title, which the law presumes, failure of Joshua to pay any portion of the consideration which . ^ * remained unpaid would not defeat that title. In short, the appellants are seeking to defeat the legal effect of the deed by showing declarations of the deceased grantor attaching a parol condition. We are clear that such declarations may not be shown for that purpose. [508] 4‘ ' [507] Evidence for appellants that at the time the deed was executed by the mother she was advised to keep it, and not let Joshua have it until he had settled with her and paid [508] her what he had agreed to give for the property, is not persuasive as to the intention which re- , mained in the mother’s mind when the deed was subsequently recorded. She may well have concluded to vest the title in Joshua by the recording of the deed, and, as already indicated, her subsequent declarations to Joshua that he was not to have it until he performed certain conditions were not competent nor sufficient to overcome the presumption of delivery arising from the recording of the instrument. II. The sufficiency of the conveyances by the heirs other than Joshua to vest a complete title in the mother prior to her execution of the conveyance to Joshua is ques-. tioned on various grounds. 0 . 5. Same: insane faftht0pur?haser: notice. It is contended that one of the sons, George, now presumed to be dead, was insane when he quitclaimed his undivided interest in the property to his mother. But there was no iudicial determination as to J hi® insanity until after the execution of his quitclaim deed; and, while the evidence tends to show that he was in fact insane prior to that time and that his mother had knowledge of his condition, there is no evidence affecting Joshua with such knowledge. Joshua is therefore in the situation of claiming title to the undivided interest of his brother George through a conveyance executed at a time when George was presumptively sane, and it is well settled that an executed conveyance for value to a good faith purchaser will not be set aside in equity on the ground of insanity of which the purchaser had no notice in case he can not be put in statu quo. Ashcraft v. De Armond, 44 Iowa, 229; Abbott v. Creal, 56 Iowa, 175; Alexander v. Haskins, 68 Iowa, 73; Swartwood v. Chance, 131 Iowa, 714. [509] 6. Same- sale of limitations. [508] As to the contention that the conveyance of the minor grandchildren of their interest to their grandmother, which conveyance was made by their guardian in a probate pro [509] ceeding, was invalid, it is sufficient to say that the time ^or questioning the regularity of the proceed™-Ss expired long before this action was brought. See Code, section 3212. It is admitted that the guardianship proceedings in pursuance of which the sale was made were regular in form, and that proper notice thereof was served. The minors who have long since attained their majority, and who have failed to question the regularity of the proceedings during the statutory period of limitation in such cases, can not now have relief on account of such irregularities, if any there may have been. 7. Same: trusts: evidence. Although the record is entirely free from any suggestion of actual fraud or undue influence on the part of Deby Ann Murphy in procuring by quitclaim deeds the apparent fee-simple title to the land in controversy in which she had only a dower interest after her husband’s death, it is the contention of appellants that the quitclaim deeds were executed in pursuance of an arrangement or understanding in the nature of a family settlement by which she was to hold title to the property until her death, when it should descend to the heirs in accordance with law, and that her conveyance to Joshua was in violation of this arrangement and in that respect a constructive fraud. Appellants rely upon want of substantial consideration for the quitclaim deeds, and on proof of conversations between several of the heirs and their mother as to the purpose for which the title was being placed in her. But want of adequate consideration for the quitclaims would not be a ground for setting them aside or declaring a trust, and, as to the evidence relating to a mutual purpose or intention that the property be held in trust, it is sufficient to say that much of the testimony supporting such an arrangement related to conversations between the witnesses testifying, who are parties to this suit, and their mother, which is wholly incompetent under [510] Code, section 3604, and that without regard to this objection the testimony is far from being clear and satisfactory that any such arrangement was acquiesced in by the mother. The farm was mortgaged, and there were debts .of.Allen Murphy to be paid. It seems to have been the general desire that his estate be settled without proceedings in the probate court. To facilitate such settlement, the children voluntarily made these conveyances, but there is no attempt in the record to establish a definite agreement or undertaking on the part of the widow that after the debts were paid the property should be held in trust. It is hardly necessary to say that in order to charge the widow with a trust the evidence must be clear and satisfactory. Palmer v. Palmer, 62 Iowa, 204; Luckhart v. Luckhart, 120 Iowa, 248. 8 Same No constructive trust is made out, and parol proof of ■an express trust is excluded by the provisions of Code, sections 2918, 4625. Gregory v. Bowlsby, 115 Iowa, 327. 'We do not hold, as counsel for appellants ' a a seem to think we must if we affirm the decree, that parol evidence is not admissible to establish a constructive trust, and we readily acquiesce in the views expressed in many cases cited by them in support of the proposition that a family arrangement, even in parol, may be established to charge property with a trust in the hands of a member of the family to whom it has been conveyed by .other members. 9. Fraudulent confidential*5 * relations. But in the case before us there were no such confidential relations between the adult children who made these quitclaim deeds and their mother as to render the conveyances presumptively fraudulent. To invalidate these conveyances, it must be made to appear that the grantors were led by fraudulent practices or deception into parting with the title to their respective shares. Newis v. Topfer, 121 Iowa, 433. [511] io. Same: limitations. But, even if there were sufficient evidence tending to show a constructive trust by reason of the violation on the part of Deby Ann Murphy of an agreement in pursuance of which the quitclaims were executed, the right 0f action in favor of the appellants on that ground is effectually barred. An action brought for relief on the ground of fraud must be brought within five years after the discovery of such fraud by the party aggrieved. Code, section 3447, paragraph 6, and section 3448. When Deby Ann Murphy executed a warranty deed to the property to Joshua, she violated the terms of the trust which the appellants now seek to establish, and, when that deed was recorded in 1891, the appellants became charged with notice of the fact. Bishop v. Knowles, 53 Iowa, 268; Laird v. Kilbourne, 70 Iowa, 83; McDonald v. Bayard Savings Bank, 123 Iowa, 413. Some of the appellants as witnesses testified to circumstances excusing them from sooner instituting action, such as that they supposed Joshua would not live long, and, as he was unmarried and childless, the title of the property would revert to them as his heirs. This explanation might have bearing if laches were relied upon as against the appellants, but it has .no bearing on the running of the statute of limitations. As the appellants became aware by the recording of the deed to Joshua that their mother was disclaiming the trust now alleged, it was their duty within-the statutory period to institute a proper action for relief. In no view of the case can we see how any right to relief at law or in equity is made out in behalf of the appellants, or any of them, and the decree is — Affirmed.