Citation Numbers: 129 Iowa 223
Judges: McClain
Filed Date: 12/15/1905
Status: Precedential
Modified Date: 7/24/2022
Tlie land in question was in 1880 conveyed to Sarah F. Anson by warranty deed from one Crego, the consideration named being $900; and on the same date a mortgage thereon was given by Sarah F. Anson and her husband to her father, Job Thorn, to secure the payment of the same amount of money. Both the deed and the mortgage were duly recorded on the same day, and the mortgage ivas satisfied of record by Job Thorn in the following year. The claim of plaintiffs is that, at about the time the deed was made from Crego to Mrs. Anson, she and her husband joined in the execution of a deed to her father, Job Thorn, in which it was recited that in consideration of $900 for the purchase of the land and the cancellation of the mortgage thereafter to be made to secure the repayment of the same, Sarah F. Anson, and her husband sold and conveyed to Job' Thorn all their right, title, and interest to the land, with this further recital: “ It being the intention to convey by this deed all the property described, subject only to occupancy and benefit by grantors during their respective lives, and that this deed shall convey all personal property of the grantors on the same conditions.” It is not claimed that this instrument was acknowledged or recorded; but the purported copy introduced in evidence concluded, after the signature of the grantors, with this statement: “ Received and accepted by me this 24th day of May, 1880. Job Thorn.”
Plaintiffs were unable to introduce the original deed in evidence, explaining its loss by the statement that it was handed by Job Thorn to his son, Win. M. Thorn, one of the plaintiffs, at about the time of its execution, and that in 1886, while Wm. M. Thorn and his wife were residing in Dakota, a portion of their house was blown away by a "windstorm, and this, with other papers in their possession and other contents of the house, were scattered and lost. It is not contended that any direct copy óf the instrument was preserved, or that any effort to secure the execution of another instrument by Sarah F. Anson and her husband, both of whom
It seems to us that the testimony for plaintiffs is not of that clear and satisfactory character which is required to justify the setting aside of a title based on recorded instruments. The theory of plaintiffs is that, when the land was
It seems to us incredible that such an instrument, intended to preserve to the heirs of Job Thorn property rights which they would be in no position to assert for an indefinite period in the future, should have been executed without acknowledgment, so that the rights evidenced by it could not be made matter of record until after the death of the grantors, when for the first time such rights could be made available; and it is equally incredible that, although Job Thorn had died in 1884, Wm. M. Thorn, losing this instrument, which was delivered to him for the purpose of enabling him in behalf of himself and the other plaintiffs to assert their rights in case of his death, should have refrained for more than fifteen years from taking steps to secure evidence of a title which confessedly could in no other way be established than by the restoration or proof of this lost instrument.
As already indicated, the depositions of Wm. M. Thorn and his wife are far from satisfactory. Although plaintiffs had in their amended petition already set out a copy of the deed which was alleged to have been lost, these witnesses, in their first depositions, do not purport to give the language of such instrument, nor to state its contents in any such way as would support the claim of plaintiffs; and then in their second depositions they claim to be able to set out in the identical language the very instrument on which plaintiffs were relying. These witnesses do not suggest any way by which they were better able in their second depositions than iu their first to recite the language of the instrument. It
The decree of the trial court is therefore affirmed.