Cameron v. Hovey , 38 Iowa 598 ( 1874 )

Day, J.

i. deed:its established stances. — The real question in the case is simply one of fact, as to whether the defendant ever executed a deed to William Stevens. We are as well satisfied as we can be of any tact, depending upon a mass ox very conflicting testimony, that he did. In such cases inferences drawn from circumstances well established, are much more satisfactory than conflicting, positive testimony. It is claimed that no deed was executed because the purchase price was not paid in full. There are many circumstances which are entirely at variance with such a conclusion. The sale was made in 1857, and notes and a mortgage on Smith were assigned in part payment. In 1861 it was arranged that defendant should take from Smith the mortgaged land, and that Stevens should give his note for about $200. This was done, and nothing was said about any further claim against him, on account of the purchase. Defendant heard of Stevens’ death about- 1866, yet he took no steps to establish his claim for unpaid purchase money against the estate.

Defendant stated to various parties that he had no claim upon the property; that it would not be best to give a quitclaim until strict search had been made for the old deed, and that he believed the old deed was in existence somewhere, and suggested that it might be at the Recorder’s office. These circumstances, and many more that might'be named, are quite sufficient, as we think to overcome his statement that he never deeded the land. In addition to this, several witnesses testify that they saw a deed for the land in question in possession of Stevens, signed by defendant. One witness, a brother of defendant, states that Stevens gave him a deed or paper to carry to the Recorder’s office of Buchanan county, for record, who said he should not receive it, as no money was sent to pay for recording, and that witness threw it down and left it. It is, however, neither practi cable nor profitable to review all the testimony. Much of it is adverse to the claim of plaintiffs, as is always the case when a controversy arises respecting a fact. We feel convinced, however, that it clearly preponderates in favor of plaintiffs.

2. ——: pownoy; áower. The deed proven was executed by E. A. Hovey alone. It is fully established, however, and this by the testimony of defendants themselves, that they united in a power of attorney authorizing T. K. Hovey to convey these premises. It seems quite probable that this was done for the purpose of correcting the omission in the deed already executed without the wife’s signature. It was proper, therefore, to bar her of any interest in the premises.

Affirmed.