Throckmorton v. Rider , 42 Iowa 84 ( 1875 )

Miller, Gh. J.

This is an action in equity, and comes to this court for trial de novo upon the evidence adduced in the court below. There js some conflict in the evidence but we have no difficulty in arriving at the facts of the case, which we find to be as follows: The plaintiff was the lawful owner of the land in controversy on the 8th day of March, 1858, on which day he and his wife executed a conveyance thereof to David N. Smith, of Lucas county, Iowa, for the nominal consideration of one thousand dollars. The purpose of this conveyance was to enable Smith, as the agent of the plaintiff,' to make sale of the land, and execute a deed in his own name to the purchaser. This course was deemed by plaintiff to be preferable to that of executing to Smith a power of attorney to make the sale.

The deed was executed and delivered to Smith, with the distinct agreement and understanding that it was to enable him to sell the land for the benefit of the plaintiff. Smith paid plaintiff no consideration, nor was the plaintiff in any manner indebted to him at the time of the execution of the deed; Smith retained the deed in his possession, without having made any sale of the land, until in March, 1860, when, at the request of the plaintiff by letter, he returned it by mail directed to the plaintiff, in care of J. W. Kellogg, at Nebraska City, N. T. Plaintiff never received the deed or the letter in which it was returned by Smith. But it came into the hands of a man at Nebraska City, who, representing himself as Smith, executed a conveyance in the name of D. N. Smith to one Alexander Goddard, a saloon keeper at Nebraska City. The evidence leaves no doubt of the fact that this conveyance was a forgery, that the Smith who executed it was not the D. N. Smith to whom plaintiff had executed the conveyance for the purpose of enabling him to sell the land. The defendants claim title through this forged conveyance. There is no evidence whatever that the defendants or any of their grantors, including Goddard, paid any consideration for the land. Indeed it appeal’s very satisfactorily that the latter paid nothing whatever. The defendants do not occupy the position of purchasers for value.

i conveybnrdenoílul: proof. The conveyance to Goddard having been fraudulent and without consideration, his grantees have the burden of proof cast nPon them to show that they purchased in good *'01’a vaRiakle consideration paid by them, and the recitals in the deads of consideration paid is not sufficient. Without proof of such payment the title of the equitable owner will be deemed paramount, and established as such. Sillyman v. King, 36 Iowa, 207; Kitteridge v. Chapman, Id., 348; Falconbury v. McIlravy, Id., 488.

The decree of the Distx-ict Court will be

Affirmed.