Hall v. Cardell

Deemer, J.

1 The land in controversy was sold for taxes October 29, 1873, and a tax deed issued December 4, 1876. It is claimed that plaintiff is the owner of the land through a deed made by her father and mother of date April 6, 1872, acknowledged the same day,. and recorded January 12, 1891. Plaintiff’s father. John Hall, became the owner of the lot May 24, 1870, but-he did not record his deed until September 28, -1875. It is claimed that plaintiff was born March 19, 1872. She commenced action to redeem March 17, 1891. If, as she claims, she was a minor at the time of the tax sale and when the deed issued, and if she was then the owner of the land, she had, by statute, one year from- the time she arrived at age within which to- redeem (Code, section 1439; Code 1873, section 892) ; and her suit in equity is the proper method of enforcing that right (Code, section 1440).

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*207 Defendants say, however, that plaintiff has not established her minority; that there is not sufficient proof of title in plaintiff; that the deed, if one was made, was neither *208 ■delivered to, nor accepted by, plaintiff; and that, on the whole case, plaintiff is not entitled to recover. Plaintiff’s father testified that she was born March 19, 1872, and he produced a leaf from, the family Bible that gave that as the date of her birth. It is said that the father’s testimony is based on the entry in the Bible, and that that entry is not admissible, because not made at the time of the birth of the child, and for the further reason that entries appearing thereon were copied from a large book into 'the one from which the leaves were cut. The record does no*. sustain this assumption. John Hall, the father, testified positively, and without equivocation, to1 the date of birth, and his testimony is not disputed. Concede, for the purpose of the case, that leaves torn from the Bible were inadmissible, yet there is no doubt as to the time of plaintiff’s birth. We may say, however, that the leaves were admissible, their weight to be determined by the court. Insurance Co. v. Pollard, 94 Vt. 146 ( 26 S. E. Rep. 421 , 36 L. R. A. 271); People v. Slater, 119 Cal. 620 ( 51 Pac. Rep. 957 ).

3 Plaintiff’s father testified that he did not know where the original deed that he made to plaintiff was; that he had made careful search for it; that plaintiff had made search, and that he had looked through all his daughter’s papers, and was unable to find it; and that he had heard the instrument was in the possession of a former attorney for plaintiff, who at the time'of trial was in the state of California. A duly-certified copy of the deed-made by the recorder of the county, was then offered and received in evidence. Defendant objected to1 it because secondary, the loss of the original not being shown. Hnder the statute (Code, section 4630), loss of the original need not be shown in order to justify the reception of certified copies of the record. Proof by the party, on oath or otherwise, that the original is not within his control, is, sufficient. The authorities fully justify the admission, of the secondary evidence. Ingle v. Jones, 43 Iowa, 286 ; Corbin v. Beebee, 36 *209 Iowa, 341 ; Olleman v. Kelgon, 52 Iowa, 39 ; McNichols v. Wilson, 42 Iowa, 385 .

4 5 6 But defendants say there is no evidence either of •acceptance or of delivery of the deed. The presumption is that the deed was delivered on the day of its date or acknowledgment. McGee v. Allison, 94 Iowa, 531 ; Farwell v. Brick Co., 97 Iowa, 286 (35 L. R. A. 63); Nichols v. Saddler, 99 Iowa, 429 . In addition to this, we have the direct evidence of plaintiff’s father, to the effect that, after the deed was signed and acknowledged, he placed it in plaintiff’s lap, and that his wife then took the instrument to hold for the benefit of the plaintiff; that it remained in the wife’s possession until shortly before it was recorded; and that it was the intention of the signers that delivery to the mother should constitute a delivery of the deed for the benefit of plaintiff. Surely this, plus the presumption, shows a sufficient delivery. Tallman v. Cook, 39 Iowa, 402 ; Newton v. Bealer, 41 Iowa, 339 ; McKenna v. Kelso, 52 Iowa, 727 . Parents are the natural guardians of their children, and, as such, may accept the delivery of deeds made to them. Code, section 3192. The instant case differs essentially from Richards v. Gray, 85 Iowa, 149 . There, a deed was made by a grandfather to his grandson, who lived in another state. The deed was acknowledged by a justice of the peace, and held by the grantor. The grandfather testified that he delivered the deed to the justice in the name and for the sole benefit, in trust, of his grandson. Neither the grantee nor his parents knew anything about the deed, and it was never recorded. Arnold, the justice, returned it to the grandfather, who was the principal custodian of it thereafter. After the redelivery-of the deed, the grandfather assumed control over the land, and entered into negotiations for its sale. Again, it is said that, as the deed bore no revenue stamp, it was invalid, and conveyed no title. The presumption is that it bore a *210 stamp, and this .presumption is not overcome by the record. Collins v. Valleau, 79 Iowa, 626 . But, if it did not bear a stamp, it was not invalid, under the internal revenue law in force at the time of its execution. Mitchell v. Insurance Co., 32 Iowa, 425 .

7 Further, it is said there is no proof of acceptance by the minor. -At the time the deed was delivered, plaintiff was but a few weeks old, and, of course, had not mental capacity either to dissent or accept. But it is the uni‘versal rule that when a beneficial instrument is made to an infant, presumption of assent obtains, and knowledge of the conveyance and of' its delivery is not essential. Cecil v. Beaver, 28 Iowa, 246 ; Tallman v. Cooke, 39 Iowa, 402 ; Newton v. Bealer, 41 Iowa, 340 ; Palmer v. Palmer, 62 Iowa, 207 . The conveyance of the property at the time it was made may not have conferred any great benefit on plaintiff, but it was certainly not prejudicial, and we think the law conclusively implies consent. Byington v. Moore, 62 Iowa, 470 ; Davis v. Davis, 92 Iowa, 147 .

Various matters are called to our attention as reasons) for not accepting the plaintiff’s evidence. We have given consideration to all of these, but are not prepared to hold that plaintiff’s evidence should be entirely, discredited. Unless we do that, there must be a decree permitting plaintiff to redeem.

8 We are constrained to believe that she. has established all the material allegations of her petition, and that she is entitled to, the relief asked. On the question as to the amount, she should pay, we are relieved of much difficulty. as she offers to take a decree setting aside the tax deed, and giving her possession of the land, without-calling on the defendants for the rents and profits. As the evidence shows that they are, at least, equal' to the amount, plaintiff should pay, we are content to give her the decree she asks, without compelling her to advance anything or the *211 defendants to account. There is some evidence of improvement placed upon the lot, but it is not of such character as that we can árrive at any proper conclusion regarding the amount, if anything, to which defendants are Entitled on account thereof.

As the case must be reversed, we remand it for a decree in harmony with this opinion,' with permission to defendants to present their claims for improvements to the district court for such an allowance, if any, as they are entitled to. This proceeding seems to be justified by Strabala v. Lewis, 80 Iowa, 510 . — Reversed.