Van Orman v. McGregor , 23 Iowa 300 ( 1867 )

Cole, J.

l. conveyacimowievidence." I. The point in controversy, to which much of the testimony is directed, is as to the signing of the deed to Alexander McGregor, by Ursula Wads-worth, wife of Solomon Wadsworth. Lot three was occupied by Wadsworth and wife as a homestead at the date of the deed to McGregor. The certificate of the officer who took her acknowledgment is appended to the deed, and is in due form. This, though not conclusive, is very strong evidence of the fact of execution. Morris v. Sargent et al., 18 Iowa, 90. But, aside from this evidence, the weight of the testimony is, that she signed and acknowledged the deed. The fact of her signing it is testified to positively and directly by the officer who took the acknowledgment and one other witness, both of whom subscribed the deed at the time as attesting witnesses. Solomon Wadsworth testifies to his signing the deed, and to the fact that the officer went to his house to obtain the signature and acknowledgment of his wife, who was at home when the officer was there, but he does not recollect that she signed it. Ursula, the wife, remembers that the officer and other subscribing witness were at her house with a paper, but she denies her signature, which was by a mark. A daughter of hers, then eleven years old, was also present, but does not remember that her mother signed the deed, and testifies that, to her best recollection, she did not, for she was constantly engaged in her household labors. All agree as to the visit of the officer, and the purpose of it. The certificate was then duly made, and was recorded the next day, and has remained uncontradicted for over eight years. In view of the positive testimony as to its execution and acknowledgment, even aside from the certificate, when compared with the half negative character of the testimony in opposition to it, we have no hesitation in holding, that the deed was executed by the wife. With the certificate, the ease is beyond doubt.

2. —- after interest! II. This deed, then, by Wadsworth and wife to Alexander McGregor, conveyed all their interest in lot three to him. By our statute (Rev. § 2210) “ where a deed purports to convey a greater interest than the grantor was at the time possessed of, any after acquired interest of the grantor, to the extent of that which the deed purports to convey, inures to the benefit of the grantee.” By force of this section, the after confirmation of the title in Wadsworth, the grantor, with warranty, inured to McGregor, the grantee, his deed purporting to convey to him an absolute title in fee simple. But, aside from this provision, the case is very plain. McGregor first purchased Wadsworth’s interest, whatever it was, and took ■ a conveyance thereof which was duly acknowledged and recorded. This conveyance became constructive notice to all persons, including the plaintiff.

The plaintiff, therefore, is a subsequent purchaser with notice, and, of course, cannot have a title paramount to the first purchaser.

There is no complaint by the defendants as to the judgment of the District Court in relation to the costs. The plaintiff is entitled to a decree correcting the error in his name as assignee of the duplicate certificate of entry for both lots two and three, and is also entitled to a decree against the McGregor defendants, and a lien upon lot three for the repayment to him of the money paid to the receiver of the United' States land-office at the time of the entry thereof, together with six per cent interest thereon from that date. With this modification, the judgment of the District Court will, at the costs of plaintiff and appellant, be

Affirmed.