DARNER v. BROWN et al.

(Supreme Court of Iowa.

Sept. 24, 1912.)

in fact signed a contract with plaintiff for the conveyance to them of the two properties, one of such properties, as already indi

1. DEEDS (§ 211*)—Fraud—EVIDENCE - SUF-cated, being the house and lot belonging to

FICIENCY.

Evidence held to support a finding that a deed was procured by fraud practiced on the

grantors.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. $$ 637-647, 649; Dec. Dig. § 211.*] 2. PRINCIPAL AND AGENT (§ 171*) — Fraud – PARTIES CHARGEABLE WITH FRAUD.

Where plaintiff availed himself of the benefits of a transaction between a third person and defendant, with knowledge that the third person purported to act as agent for plaintiff and defendant in the transaction, resulting in an exchange of real estate, and the relations between plaintiff and the third person were intimate, plaintiff was chargeable with fraud of the third person inducing defendant to make the conveyance, and the court properly rescinded the transaction as against plaintiff.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. 88 644-655; Dec. Dig. 8

171.*]

Appeal from District Court, Wapello County; M. A. Roberts, Judge.

Action to quiet title to a 40-acre tract of

H. D. Judd's wife, and a deed to plaintiff for their land, and H. D. Judd subsequently delivered to Orson Brown deeds for the two pieces of property which were by the arrangement to be taken in exchange, with the suggestion that he should have them recorded for fear he would lose the property, and advanced to him the money for such recording. Subsequently a deed was executed by the Browns to J. W. Jordan for the same land for which they had executed a deed to plaintiff.

[1] Plaintiff sustains his action to quiet title by the introduction in evidence of the deed of the Browns to him; and the Browns defend on the ground that their signatures to the deed and contract executed by them to plaintiff were procured by the fraud of

the circumstances, charged with notice. It

H. D. Judd, of which plaintiff was, under

is established in the record without substan

tial controversy that the Browns are both ignorant and incapable persons, being barely able to read and write, that Orson Brown was for a time under guardianship on account of mental incapacity, and that when he was discharged from such guardianship the

land, alleged to have been conveyed by the defendants Orson Brown and Sarah Brown to the plaintiff. One J. W. Jordan, grantee of the property under conveyance from the defendants Brown, was made a party defendant; but, having died pending the litigation, his heirs and executor have been sub-court directed that he should allow one

Steck, an attorney, to look after his business affairs for him. Brown and his wife both

testified quite circumspectly that they supposed, and were led to believe by H. D. Judd, that the contract and deed which they signed were to be treated as a proposition to plaintiff, and that the transaction should not be regarded as consummated and binding up

on them until it was submitted to said Steck and received his approval, and that when they sought to submit it to Steck they were advised that their deed to plaintiff was already on record. H. D. Judd, as a witness, denied that there was any such conditional arrangement; and the question submitted to the lower court, so far as it involved fraud, was whether the arrangement between the Browns and H. D. Judd was such as was claimed by the Browns, and whether plaintiff was chargeable with any fraud committed by H. D. Judd. The trial judge had before him the witnesses whose testimony tended to establish or negative the alleged fraud in the transaction, and on an examination of the evidence we feel satisfied that he properly reached the conclusion that fraud was sufficiently made out.

PER CURIAM. The tract of land to which this controversy relates was the home stead of the defendants Orson and Sarah Brown, and at the solicitation of one Clarence Judd, who was a member of the firm of Judd Bros., real estate agents, was listed with the firm for exchange for other property. After the lapse of several months, H. D. Judd, the other member of the firm, proposed an exchange of the property for certain property belonging to plaintiff, which was subject to incumbrance; plaintiff to pay a small cash bonus. This proposition was rejected. Thereupon H. D. Judd showed the [2] Plaintiff paid to H. D. Judd a cash defendants Brown a house and lot, which in consideration for the house and lot belongfact belonged to his wife (though this was ing to Judd's wife, which was in fact connot disclosed), and proposed an exchange of veyed by said Judd and his wife to the the land for this house and lot and one of Browns in part consideration of the conveythe pieces of property already examined, be- ance of the land by the Browns to plaintiff. longing to Darner. This proposition appear- He thereby availed himself of the benefit of ed to be acceptable to the Browns, and they the transaction between H. D. Judd and the

Browns, well knowing that H. D. Judd was think, erroneous. The assessments should purporting to act, not only for the Browns, have drawn interest from the time the asbut for himself, in effecting the exchange. sessment was made by the board, and the Indeed, the relations between plaintiff and decree should be so modified. The latter H. D. Judd in the negotiations were so in- part of the decree, fixing the time of paytimate that the latter took the acknowledgment, etc., became inoperative because of ment of the conveyance of the Browns to plaintiff, while plaintiff acknowledged for Judd and his wife the conveyance of the latter to defendants. It clearly appears, therefore, that Darner was a party chargeable with notice of any fraud in the transaction between H. D. Judd and the Browns. Plaintiff and the Browns had no negotiations whatever with each other.

Under these circumstances, we reach the conclusion that fraud in the transaction between H. D. Judd and the Browns is clearly established, and that plaintiff is charged therewith. The trial court properly decreed a rescission of the exchange as between the Browns and plaintiff, and quieted title in the heirs and executor of Jordan to the land in controversy.

The decree of the trial court is affirmed.

Appeal of LIGHTNER. LIGHTNER v. BOARD OF SUP'RS OF GREENE COUNTY et al.

(Supreme Court of Iowa. Sept. 25, 1912.) 1. DRAINS (§ 82*)-DRAINAGE DISTRICTS-ASSESSMENTS-INTEREST.

A decree reducing certain drainage district assessments and confirming others should have provided for interest from the time the assessinents were made.

[Ed. Note. For other cases, see Drains, Cent. Dig. §§ 84-87; Dec. Dig. § 82.*] 2. DRAINS (§ 82*)-DRAINAGE DISTRICTS-ASSESSMENTS-TIME FOR PAYMENT.

Appeal from a decree reducing certain drainage district assessments and confirming others renders inoperative a provision of the decree fixing the time for payment, requiring a new time to be fixed on remand of the cause after modification and affirmance of the decree. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 84-87; Dec. Dig. § 82.*]

On petition for rehearing. Overruled.
For former opinion, see 136 N. W. 761.

PER CURIAM. In writing the opinion filed herein, the matter of interest on the assessments, which was referred to briefly in the arguments filed for appellant, was overlooked, and in a petition for a rehearing the matter is again brought to our attention. [1, 2] The trial court in its decree in effect refused to allow interest on any of the assessments, although confirming some of them, but decreed that the assessments fixed or approved by it should be placed upon the tax books, and, unless paid by March, 1911, then the same should become delinquent, and be subject to the interest and penalties provided by law. This order, in so far as it denied interest on the assessments, was, as we

the appeal, and upon remand a new time should be fixed when the payment of the amount due on the assessments shall become delinquent, in order that the sum so found due, if not paid forthwith, may be collected as provided by law. In fixing the amount due, payment already made should be properly credited. The effect of this holding is to add an additional modification of the decree to the extent indicated, and the case will be remanded for a final order and decree in the district court in harmony with the original opinion and this further modification.

The petition for rehearing will otherwise be overruled.

HUSTED et al. v. ROLLINS et al. (Supreme Court of Iowa. Sept. 21, 1912.) 1. DESCENT AND DISTRIBUTION (§ 56*)—REAL ESTATE ACQUIRED BY WIFE DURING MAR

RIAGE.

Where a woman purchasing real estate after her marriage to a second husband died intestate leaving no children of the second marriage, but leaving children of the first marriage, the second husband was at most entitled to one-third, and on his death his heirs, under Code, §§ 3378, 3379, took his share.

[Ed. Note. For other cases, see Descent and Distribution, Cent. Dig. § 173; Dec. Dig. § 56.*]

2. DEEDS (§ 124*)-TITLE CONVEYED-Words

OF INHERITANCE.

Though under Code, §§ 2913, 2914, providing that the word "heirs" or other technical words of inheritance are not necessary to convey an estate in fee, and words of inheritance are not necessary to create an estate of inheritance, the absence of words of inheritance may be of importance in determining whether a fee is conveyed.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 344-355, 416-435; Dec. Dig. § 124.*] 3. DEEDS (§ 95*)-CONSTRUCTION-INTENTION OF GRANTOR.

Though at common law the habendum clause in a deed defined the estate of the grantee and could be resorted to to explain, enlarge, or qualify the estate granted, the courts in construing a deed will construe the whole instrument without reference to formal divisions to ascertain and give effect, if possible, to the intent of the grantor.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 241-254; Dec. Dig. 8'95.*]

4. DEEDS (§ 129*)-CONSTRUCTION-ESTATES CONVEYED.

A deed reciting that the grantor sells and conveys unto the grantees named described real estate, and providing that the grantor covenants with the grantees that he holds the premises by good title free of incumbrances. and that the deed shall take effect at the death of the grantor, and that the grantees that it shall then go to a third person named, shall have the property for their lifetime, and conveys a life estate to the grantees named,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

A remainder in fee after a life estate may be declared in the habendum clause of the deed to one not mentioned in the granting clause. [Ed. Note.-For other cases, see Deeds. Cent. Dig. 366, 367, 372, 373; Dec. Dig. § 132.*] 6. HOMESTEAD (§ 138*)-RIGHTS OF SURVIV-tract C he denied that the property was ever ING HUSBAND-ELECTION.

each of defendants was given a two-ninths interest therein. Defendant William Pleasant Rollins appealed from this decree, as also did all the plaintiffs from that part of it which gave them but one-ninth instead of one-sixth of tract B.

tate. At most, he was entitled to one-third, and, he having departed this life, his heirs, three in number, would on the face of it each be entitled to but one-third of onethird, or one-ninth. Code, §§ 3378, 3379.

[2] The other proposition is more difficult of solution. It is claimed for this appellant that, under the deed which we have set out, he became the owner in fee of tract B, in virtue of what is denominated the habendum clause, reading as follows: "This deed to take effect at the death of Pleasant Rol

It should be stated in this connection that Pleasant Rollins, the grantor in this deed, died many years ago. So the issues stood until the death of Caleb Rollins, when plaintiffs filed an amended and supplemental petition in which they set forth the death of Caleb Rollins and in lieu of the allegations [1] We shall first consider the appeal of of the original petition stated, with refer- defendant Rollins. He insists that he beence to tract B, that Caleb and N. J. Rollins came the owner in fee of tract B in virtue were each the owner of an undivided one- of the deed which we have heretofore set half thereof down until the death of N. J., out. He also claims that, as tract A was and that upon her death Caleb, instead of purchased by N. J. Rollins after her martaking his distributive share of his deceased riage to Caleb, each of the defendants should wife's estate, elected to use and occupy the have been given a one-sixth of that tract, or same for life as part of the homestead of in all one-half of it on the theory, as we himself and wife, and they averred that understand it, that N. J. Rollins died withthey, as the heirs of N. J. Rollins, were each out issue. The second of these contentions entitled to an undivided one-sixth of all the is without merit. It is true that Mrs. Rolland in tract B, and the substituted defend- lins did not acquire the title to tract A until ants, the heirs of Caleb Rollins deceased, after her marriage; but when she died she three in number, where each entitled to an was not without issue, for plaintiffs were undivided one-sixth. They further averred her legal heirs, although not the heirs of that in virtue of the election made by Caleb her husband. Her husband, Caleb, thereRollins during his lifetime, both by conduct fore could not have taken one-half of her esand in the answer filed by him, plaintiffs were the owners and entitled to the whole of tract A. The substituted defendants in their answer admitted that upon the death of N. J. Rollins plaintiffs each became the owners of an undivided two-ninths of the land in tract A, but averred that they had no interest in tract B, averring that the title was in William Pleasant Rollins, but further claiming that if Caleb Rollins had any interest in this land they were each entitled to an undivided one-sixth thereof. As to tract C, they averred that N. J. Rollins dur-lins, and then Caleb Rollins and N. J. Roling her lifetime elected to occupy the same as her homestead after the death of her first husband, but further stated that on the death of N. J. Rollins each of the plaintiffs, three in number, became the owner of an undivided one-third of tract C. They each and all denied any election by Caleb Rollins during his lifetime to take a homestead in tract C in lieu of his distributive share. William Pleasant Rollins, in his answer to the supplemental petition, adhered to his claim of title to tract B, and denied that his father, Caleb, had made any election which deprived him of his right to take distributive share, and as an heir of Caleb he claimed a one-ninth interest in tract A. On these issues and the testimony adduced in support thereof the trial court rendered a decree finding that N. J. Rollins died seised of tract A and was also the owner in fee of a one-half interest in tract B, and that she also had the right during her natural life to occupy the tract known as C. Other findings were made, and on the strength thereof the title to tract C was found to be in plaintiffs, and each was awarded an undivided one-third interest therein. They were each awarded a two-ninths interest in tract A, and defendants were each given a one-ninth thereof. And plaintiffs were each awarded a one-ninth interest in tract B, and

lins to have it their lifetime, and then it falls to William Pleasant Rollins." No claim is made that the instrument is testamentary in character, and, as all parties treat it as a deed conveying present interest taking effect not later than the death of the grantor, we shall so consider it. Were it not for this final clause, there could be no doubt that it conveyed an estate in fee simple to the grantees named. True the word “heirs" does not appear in the granting clause, but this is not essential under our law. Section 2913 provides that the term "heirs or other technical words of inheritance are not necessary to create and convey an estate in fee simple." It is also provided in section 2914: "Every conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used."

While it is true, of course, under these statutes, that words of inheritance are not necessary to create an estate of inheritance, and that it will be presumed every conveyance of real estate passes all the interest of the grantor therein unless a contrary interest can reasonably be inferred from the terms used, it is nevertheless true that the absence of words of inheritance may be full of significance, for the law does not say in express terms that every conveyance where

these words are omitted shall create an es-, thing in the habendum. Kelly v. Hill (Md.) tate in fee simple. As we view it, section 25 Atl. 919; Breed v. Osborne, 113 Mass. 2914 of the Code has no application here; 318; Faivre v. Daley, 93 Cal. 664, 29 Pac. for the reason that, no matter what con- 256; Karchner v. Hoy, 151 Pa. 383, 25 Atl. 20. struction be put upon the deed, it is con- Notwithstanding these somewhat arbitraceded that it passed all the grantor's estate. ry rules, common-law courts have almost The real question is: Who took under the universally given effect to both the grantdeed, and what is the nature of the estate ing clause and the habendum whenever it conveyed? Section 2913 is important; but, was possible to do so by fair construction. as already suggested, it does no inore than Thompson v. Carl, 51 Vt. 408; Rowland v. to supply by implication or presumption the Rowland, 93 N. C. 220; Tyler v. Moore, 42 word heirs or other equivalent terms. Rec- Pa. 374; Jamaica Pond v. Chandler, 9 Allen ognizing this rule, appellees contend that the (Mass.) 159. Again if the estate is briefly last clause is in the nature of a habendum, defined in the premises and more specifically and, as it is repugnant to the estate granted in the habendum, the latter will control, for in the granting clause, it is void. Something that is its office. Karchner v. Hoy, 151 Pa. is said in argument to the effect that it is a 383, 25 Atl. 20; Doren v. Gillum, 136 Ind. restraint on alienation: but this is not true 134, 35 N. E. 1101. The modern rule, and as we view it. Whether it grants a life the one we have adopted, is to construe the estate or a fee to Caleb and N. J. Rollins, whole instrument without reference to forthere is nothing in the habendum which mal divisions in order to effectuate, if posplaces any restraint upon their power to sible, the grantor's intent. Beedy v. Finsell whatever estate they may have. In this ney, 118 Iowa, 276, 91 N. W. 1069. That respect the case differs from Teany v. Mains, decision fully reviews the authorities, and 113 Iowa, 53, 84 N. W. 953, McCleary v. El- we need only quote therefrom as follows: lis, 54 Iowa, 311, 6 N. W. 571, 37 Am. Rep. "Where, however the premises purport to 205, Case v. Dwire, 60 Iowa, 442, 15 N. W. convey without qualification or description, 265, and other like cases relied upon by ap- there can be nothing inconsistent with it in pellee. Case v. Dwire is nearest in point; the habendum declaring the character or but in that case the conveyance was either quality of the thing transferred, for that is of a fee simple absolute, or of a base or not elsewhere defined. The repugnancy, to determinable fee, and the court expressly defeat the habendum, must be such that the held that, as there was no particular estate, intention of the parties either cannot be asthere could be no remainder, for there was certained from the whole instrument, or, if no estate upon which a remainder could ascertained, cannot be carried into effect. rest. It was also suggested that if the only If, from the entire instrument and attending question to be considered was, what parties circumstances, it appears that the grantor took the estate under devises passing title, intended to enlarge, restrict, or even repugn a different question would arise. the conveyancing clause, the habendum will control. It is then to be regarded as an addendum or proviso to the granting clause, which will control it even to the extent of destroying its effect. In short, the modern rule requires the consideration of the deed as a whole, and not in separate and distinct parts, as was formerly done, and the finding of repugnancy avoided whenever all the provisions of the instrument may, without ignoring the accepted canons of construction, be given force and carried into effect.

[3] Under the common law, and indeed under all statutes with which we are familiar, the object of a habendum clause is to define the grantee's estate. But it was also true that if the premises, meaning all that part of the deed which went before the habendum, granted an estate in fee simple as "to the grantee and his heirs" or "to the grantee, his heirs and assigns," the estate conveyed was in fee simple, although there was no habendum. Again, under the same law, if the granting clause was either silent or ambiguous as to the estate intended to be conveyed, the habendum was resorted to in order to ascertain the nature of the estate. At common law the rule quite generally announced was that while the habendum might be resorted to to explain, enlarge, or qualify the estate granted, it would not be allowed to contradict or defeat the estate granted in the premises. At common law, if the word "heirs" or its equivalent was not used, the grantee took a life estate only by implication; but here the presumption might be enlarged or qualified by the habendum clause. But if the premises expressly granted an estate in fee, the conveyance could not be wholly annulled by any

The estate may be limited in the habendum, although not mentioned in the premises of a deed, and without the use of the word 'remainder.' * * And the latter part of a deed has been allowed to control, and render what seemed to be a fee, a life estate in the first taker. Prior v. Quackenbush, 29 Ind. 475."

[4] In view of this our latest pronouncement upon the subject, our path seems reasonably clear, for there can be no reasonable doubt as to the grantor's intent in making the deed. He evidently did not intend to pass the fee to the parties named as grantees in the premises. The only remaining doubt is: Did he convey the remainder to William Pleasant Rollins? Had Rollins been