
    S. E. Irish et al., v. Morris Steeves et al., Appellants.
    Conveyances: absolute deed as mortgage: evidence. A warranty 1 deed and contemporaneous agreement containing a provision for reconveyance on certain conditions, which were never performed, and providing that the same shall not be considered as a mortgage, will not be so construed except upon very strong and persuasive evidence.
    Wills: election by widow: evidence. Under the Code of 1873 it 2 was necessary for a widow, except by estoppel arising from her acts or conduct, to file her election to accept the provisions of the will to bar her right to a distributive share in her husband’s estate; and the only competent proof of such an election was a writing signed by her and so filed. In this case the evidence is insufficient to show an election.
    Same: conveyance by remainderman: estoppel by deed. Under the 3 statute providing that a deed purporting to convey a fee estate shall pass any title subsequently acquired, a remainderman who has conveyed his interest by warranty deed is estopped from claiming title as an heir of his mother, when it subsequently appeared that she had a distributive share in the estate by reason of a failure •to elect to accept the terms of her husband’s will instead.
    Same. The testator in this case devised a life estate to his wife 4 with a portion of the remainder to a daughter-in-law, who conveyed' by warranty deed during the life of the widow, her husband joining, to another remainderman, the deed reciting that it was subject to the life estate. It subsequently appeared that the widow was the owner of a distributive share of the estate, never having elected to accept the provisions of the will. Held, that the husband of the daughter-in-law was-' not estopped by joining in the deed from claiming an interest in his mother’s estate in the property; since under the statute the covenants of the deed were not binding upon him, and the recital that it was subject to the life estate was of no more force than the covenants ; and it will not be assumed that either of the parties to the deed intended that the husband was relinquishing an interest in property which neither supposed existed.
    
      Same. A legatee in this case whose bequest was a lien upon land 5 executed a quitclaim deed of the same to another legatee who paid the amount of the bequest. Held, that she was not estopped to claim a share in the land as heir of her mother, who was subsequently discovered to own a distributive share in the husband’s and father’s estate, and who died after the execution of the quitclaim deed.
    Tenants in common: accounting. A tenant in common of prop-6 erty and in possession thereof should be charged with income of the property as an offset to amounts paid in satisfaction of mortgages and taxes.
    
      Appeal from Van Burén District Court. — Hon. M. A. 'Roberts, Judge.
    Friday, February 16, 1912.
    Action to quiet title. There was a decree granting relief as against one of the defendants and -as to others denying the full Belief prayed in the petition. Both the plaintiffs and the defendants appeal, but, as defendants’ appeal was first perfected, they will be treated as appellants.
    
    Affirmed on plaintiffs’ appeal; modified and remanded on defendants’ appeal.
    
      Walker & McBeth, for appellants.
    
      S. E. Irish, Bobt. & H. B. Sloan, E. L. McCoid, and Joseph C. Mitchell, for appellees.
   McClain, C. J.

The plaintiffs seek in this action to have their title quieted as to two adjoining eighty-acre tracts of land, each being the east half of a quarter section. For convenience these two tracts will be designated in this opinion as the north eighty and the south eighty. Together these two tracts of land constituted the farm of -one' John Steeves, wiho, on his death in 1895, left a will, duly probated, devising to his surviving wife, Maibala, a life estate in the farm in lieu of dower, with, remainders as follows: To- his daughter Mary, (subsequently the wife of O. L. Stevens) the south three-eights of the south eighty; to Sadie, the wife of Ms son Harvey, the north five-eighths of the south eighty; and to his son Alfred the entire north eighty, charged with bequests to be paid by him on or before two years from the death of the widow to his brothers and sisters in the total sum of $525. The .claim of the plaintiffs is that Alfred Steeves, becoming the sole and unqualified owner of the north eighty, on the death of the widow terminating her life estate, >and also the sole and unqualified owner of the south eighty hy conveyances from the devisees thereof, conveyed the entire tract of land 'to plaintiffs by an instrument which was in nature a warranty deed with an accompanying contract by which it was to he reconveyed from plaintiffs to him on the payment of a specified sum, and that such sum of money was not paid, and no reconveyance was demanded within the time limited in the contract for such conveyance. The claim of Alfred Steeves is that this conveyance to plaintiffs was procured by fraud, and was, in fact, intended and understood by both parties to he a mortgage to secure the payment of a sum of money hy Alfred Steeves to the plaintiffs, and an accounting is asked for the purpose of determining the amount to be paid, if any, by way of redemption. Tbe other .defendants claim undivided interests in the land as heirs of the widow under the contention that she never elected to accept the .provisions of the will in lieu of dower, and died entitled to an undivided one-third of the entire farm, none of which interests passed to plaintiffs under the conveyance to them by Alfred Steeves or otherwise. These statements as to the claims of the parties are’ not drawn from the pleadings Which are extremely voluminous, hut they substantially represent the issues presented to the lower court for determination. It is apparent that one controversy is as to the validity and effect of the conveyance from Alfred Steeves to plaintiffs purporting to transfer title to the entire tract of land; while another an)d wholly independent controversy is that between plaintiffs and the heirs of the deceased widow, relating to the interests claimed by them which never were conveyed as such to Alfred, 'and-therefore did not pass- as claimed Under Alfred’s conveyance to plaintiffs.

The lower court held that the instrument purporting to be a conveyance from Alfred Steeves to plaintiffs was not .a mortgage, but a' deed with an 'agreement to reconvey on certain conditions which had not been performed, and therefore passed.to plaintiffs all the title wdíich the grantor had in the entire premises; hut, as between plaintiffs and the heirs of the deceased widow, it held that 'tlhe widow died seised by way of dower of an undivided one-third of the entire tract of land, and that the interests of her heirs as snch have never been conveyéd to Alfred, 'and did not therefore pass under the conveyance made by him to the plaintiffs.

evidence. It would he useless to attempt to state without substantially copying the record the testimony relating to thie question whether the conveyance from Alfred Steeves to the plaintiffs was in fact a mortgage, instead of being, as it purported to be, a conveyance with an agreement on the par.t of plaintiffs to reconvey to the grantor on payment of $1,000 within one yean. The best that can he dlone under the circumstances is to state briefly uncontroverted facts -and the conclusions which we draw from -the evidence -as to the facte Which are in controversy. The conveyance itself was in form a warranty deed for the express consideration of $1,000, subject, however, to certain mortgages. It -appears without controversy in the evidence that, before this deed was executed, Alfred Steeves had been -arrested for forgery or the passing of a forged instrument and had had some conversation with the plaintiff S. E. Irish (who will hereinafter he referred to as though he were the sole plaintiff, his co-plaintiff being his wife, to whom he subsequently executed a conveyance of the property) with reference to being represented by him as attorney in securing -a. release from arrest on bond, and making defense to the prosecution, and that after he was released from arrest, and while the prosecution was pending, it was 'arranged between them that plaintiff should represent him as attorney, the conveyance being either in payment of or as security for plaintiff’s attorney fee, and the warranty deed was executed in pursuance of this arrangement. The written instrument executed at the same time recites an agreement that if the said Steeves shall pay to the said Irish within twenty days after his release from said cause or the exoneration from said bond the money deposited by way of bail for his release in the sum of $500 and the further sum of $500 within one year from said release or exoneration of said bond, with interest from the date of the release, then said Irish will reeonvey to said Steeves the real estate described in the deed clear of all claims placed thereon by s'aid Irish immediately upon the payment of said sum in full, but that, if said payments provided for are not made, the obligation to sell or reconivey shall be void and of no effect; and “it is specially provided that in no sense shall this 'agreement be considered >a mortgage so as to necessitate a foreclosure hereof, but it is and shall be an agreement to sell or reconvey upon the payment or for the sum of $1,000, and interest if paid within one year from the date of the releasing the money deposited for bond, or dismissal of the cause pending.” Steeves was convicted of the crime charged against him and sentenced to imprisonment in the penitentiary for eight months, and to pay a fine of $100. Thereupon Irish drew from the clerk of the court the balance of the $500 over and above the amount of the fine and used about $95 of the balance to pay, at Steeves’ request, an indebtedness of the latter. Whether the balance of the money thus pnocurd by Irish from the clerk was appropriated by him to his own use or paid out on claims against S'teeves wlhieh he was 'authorized to pay is .a matter of controversy in the record, and in 'the view which we take of the ease need not be further considered. After Steeves hiad served his sentence and been released from imprisonment, be bad negotiations with Irish in reference to a reconveyance of the property, but eventually made some 'arrangement with one Slutts which Irish claimed amounted to a conveyance of the entire tract of land to said Slutts, and in pursuance of this arrangement, whatever.it was ian'd however it may have been represented to Steeves, tbe latter placed Slutts in the possession of the entire farm, possession of which had prior to that time been retained by Steeves, wtbo during his mother’s lifetime had lived with her or she with Mm on said farm. Subsequently Slutts abandoned the farm and left the state, and plaintiff conveyed the south eighty to one Oalhoun.

We 'are unable to find in the evidence any sufficient grounds for holding that Steeves was defrauded into executing any other or different instruments than those which he intended to execute, nor can we find any sufficient evidence to justify us in holding that the deed -and the written agreement together, in fact, constituted a mortgage from, which Steeves is now entitled to redeem.

In the face of the express written recital of an agreement to reconvey, it would certainly require very strong and persuasive parol evidence to convert the transaction into a mortgage. We need not discuss the question as to which counsel cite authorities whether su-dh an express agreement for reconveyance on specified terms within a specified time can he shown by parol to he in fact only u mortgage. It is sufficient to say now that there is not in this record any such persuasive evidence as would justify us in disregarding the express recitals of the parties as to their intention.- We reach the conclusion 'that the lower court did not err in finding that the warranty deed conveyed to plaintiff -all the interest which Steeves had in the property, and that, in the absence of compliance by Steeves with the conditions for repurchase, his interest in the property has wholly terminated.

II. The widow of John Steeves, the provisions of whose will have been -already referred to, remained -on the farm with 'her son Alfred until her death, and her entire relation to -the property was consistent with tan intention -to 'accept the provisions of the will in her favor giving her a life estate in the entire property in lieu of dower. Without doubt her children all believed and had reason to believe that she had relinquished her dower, interest, so far as such relinquishment could he effected hy the mere expression of intention. But the statutory provision on the subject which was in force when the will was probated' (Code of 1813, section 2452), provided that the widow’s share could not he affected by any will of her husband unless she consented thereto “within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall he entered on the proper records” of the probate court. It is not claimed 'that any such notice was givto the widow in this case, and the plaintiff produces no record of the probate court showing the consent of the widow to take the provisions of the will in her behalf in lieu of dower. One witness testified that, wshen examining the files of papers relating to the estate of John Steeves in the clerk’s office, he saw a written election of the widow to accept the provisions of the will, and in 'a general way he testified that the widow had filed an election in the handwriting of the clerk, but on cross-examination he said that he left the papers in the clerk’s office, and that the election was with them, not attached to the other papers, but folded in with ■the other papers, and that he never looked for any record where it had been entered. His final statement was: “I now think I siaw a loose piece of paper in Mr. Brown’s handwriting which ivas an election under the will.” Being subsequently recalled for the plaintiff, this witness testified that on the occasion already referred to he went to the clerk’s office and got the papers in the estate iand looked them over; and, further: “I do not remember all the facts, but I do remember my conclusions at the time. I can’t state all the details of it. I remember what the terms of the will were, and what I concluded from reading the original will and the records. I ialso saw she wiaivad her dower right. There was a writing, but I could not give you the wording of it. The substance of it was that she had elected to take the life estate under the will.” It will be observed that the witness’ testimony is only by way of condusiton a's to the signature of the widow to 'this paper, purporting to be an election on her part, and that he does not pretend to have noticed whether it bore a filing miark such -as to make it a part of the records in the estate case. We need not now decide whether, if such paper had been actually filed, the election would be sufficiently made out. It is enough to say that there is. no evidence in the ease -showing -the filing of an election by the widow. Without such evidence, it is clear that -the statutory election is not made out; and it has been frequently held no other evidence of election by the widow was sufficient under this statutory provision to bar her dower right. Jones v. Jones, 137 Iowa, 382; Byerly v. Sherman, 126 Iowa, 447. No doubt the widow might by deed or conduct have estopped herself from 'asserting her dower right (see Koep v. Koep, 146 Iowa, 179), but no act or conduct of hers appears in the record even tending to establish an estoppel in favor of either her son Alfred or this plaintiff. It follows that on her death her undivided dower interest, which had not been relinquished by any valid election, descended to her children, who thereupon became entitled each to his or her proper portion of an undivided one-third of the entire farm. The 'children thus surviving her are the sons, Alfred, Morris, anld Harvey^ and the daughters, Ella Snyder and Emmia Smith, 'all of Whom, with their respective wives or husbands, as the ease may be, are parties to this .action.

By this warranty deed to plaintiff, Alfred is estopped from asserting, as against plaintiff, any interest 'as heir of his mother in the premises, for such deed purported to convey a fee-simple title to the entire tract of land. See Code, section 2915. But, before . Alfred executed the conveyance to plaintiff, his brothers and sisters 'had executed deeds to him for certain portions of the land or for their interests therein, and it becomes necessary to inquire whether us to each an estoppel by deed has arisen upon which plaintiff, •as grantee of Alfred, may rely to defeat the assertion of an undivided interest as heir of the mother. Mary Stevens did not survive her mother and left no children, hut prior to her death she had conveyed the south three-eighths of the south eighty to Alfred. Sadie Steeves, devisee in the will of the north five-eighths of the south eighty (her husband Harvey Steeves joining with her in the conveyance), prior to the death of Harvey’s mother, conveyed the share which she took under the will to Alfred by a warranty deed, hereafter to be referred to. Morris Steeves, Ella Snyder, and Emma Smith, prior to the death of their mother, executed quitclaim deeds to Alfred which will be hereafter more specifically referred to. Therefore, when Alfred conveyed to plaintiff, he was vested with fee-simple title to the entire farm, unless the interests of his two brothers -and two sisters, respectively, as heirs of their mother, had not been vested in him.

The conveyance of Sadie and Harvey Steeves to Alfred was a warranty deed of the north five-eights of the south eighty, “subject, however, to the life estate of Mahala Steeves.” By inurement this warranty deed carried whatever interest Harvey Steeves as heir pf his mother afterwards acquired in that portion of the land subject to two questions: First, whether, as the devise of this tract of land was to his wife, Sadie, and not to 'himself and he therefore joined with her in the deed as her husband, the recitals estop him from asserting interest as heir* of his mother in that tract"; and, second, whether the assertion 'that the conveyance was subject to the assumed life estate of his mother estopped him from now asserting that he took any interest a's heir of his mother, in view of the conclusion already reached that his mother had a dower interest which she had mot relinquished. The recital in this deed is “that we, Sadie Steeves 'and Harvey Steeves, hen husband, ... do hereby sell anld Convey unto the said Alfred Steeves,. the following described premises,” describing the north five-eighths of the south eighty (subject, as already stated, to the life estate of Mahala Steeves) with the usual covenants. The covenants of title were mot binding upon Harvey, the husband (see Code, section 2921; Thompson v. Merrill, 58 Iowa, 419; Moore v. Graves, 91 Iowa, 4; Blumenthal v. Culver, 116 Iowa, 326) amd under this statute an!d decisions it is clear that the recital in the granting clause would not estop Harvey from subsequently asserting his interest as h'eir of his mother. It would be unreasonable to give to the recital in the granting clause any greater effect 'by Way of estoppel than is given to the express warranty of title. The reservation of the mother’s assumed life estate ought not, we think, to be construed into an estoppel against Harvey as to his interest as his mother’s heir, for the double reason that such a recital ought not to be given greater effect than the express warranty, amd that, in any event, such a recital ought mot to be construed to cut off the right of Harvey t'o claim that, notwithstanding the assumption that the another’s interest was only that of a life estate, as matter of fact she Was entitled to a one-third' interest in fee as dower. Neither the grantors nor the gr/antee can be assumed to have had in mind the relinquishment by Harvey of am interest which neither of them supposed to exist. Wolf v. Wolf, 152 Iowa, 121.

The conveyance by Emma Smith and her husband to Alfred, which is relied upon to estop Emma from claiming as against plaintiff, any share as heir of her mother in the premises is a quitclaim to Alfred of “all our right, title and interest in and to” the north eighty, “the above described land .being willed to Al(fred) Steeves subject to the life estate of his mother, the bequest to Emma Smith of $150.00 and certain other bequests by the will of John Steeves, deceased. The intention being to acknowledge the receipt of our bequest and releasing the land therefrom.” We think no elaboration is necessary to justify the conclusion that -there is nothing in this instrument estopping Emma from now claiming, as against plaintiff, the interest which she has 'acquired as heir to her mother. Ella Snyder and husband and Morris Steeves and. wife joined in a quitclaim deed to Alfred of all their interests in the north eighty similar in general terms and effect to the quitclaim of Emma Smith, above referred to.

We are satisfied, therefore, that the trial court did not err in finding that the four defendants, brothers and sisters of, Alfred, are not estopped by their conveyances to him from now claiming each a one-fifth share of the one-third undivided interest which their mother held as dower. It may be true that if these parties had appreciated the fact that their mother held an undivided dower interest, instead of a life estate, Alfred would not have paid the legacies in full', and the conveyances to him would not have been made. But that is a mere matter of speculation. They all assumed to act in view of the title as it actually existed, and we think that the conveyances should not be given -any different effect -so far as this plaintiff is concerned -than that which would have resulted from the making of them if the true state of the title had been understood when they were made.

But in one respect the decree must be modified. Notwithstanding the finding by the court that Iiatrvey Steeves is not estopped by the deed in which he joined with his wife' in conveying to Alfred the north five-eighths of the south eighty from claiming as heir of his mother a. one-fifth interest in her undivided one-third 'thereof, the decree denies him that interest as to said tract. In this respect it is erroneous.

In another respect, abo, the decree should be modified. -Plaintiff is 'allowed for 'amounts paid in satisfaction of mortgages and taxes, but is not charged with rents 'and profits received. As he has been tenant in common ' with the two brothers and two sisters of Alfred Steeves, he should, as against the amounts paid out in satisfaction of -mortgages and taxes, be charged with what he has received. We do not find that he has actually received anything by way of rent; but he did receive $156.20 for wood sold from the land, and this should he offset .against his claim for. money paid out on 'account of the mortgages and taxeis. The decree contains complicated provisions for setting off the interests of the four heirs of MahaJa Steeves ;in the entire tract from the north eighty, which remains the property of plaintiff. No complaint is made of these provisions otherwise than as above indicated, and we need not -describe them, in detail.

Without following counsel through the mazes of their rather intricate, and, in any event, elaborate and able -arguments, we are satisfied to announce the conclusion that in every respect to which our> attention has been called, save .as above indicated, the decree of the lower court Was right. The case is remanded for such modifications of the decree as are necessary to bring it into harmony with this opinion.

Affirmed on plaintiff’s appeal; on defendant’s appeal modified and remanded.  