
    J. M. Maxwell, Plaintiff and Appellee, v. Marie McCall et al., Defendants and Appellants.
    1 Easements: conveyance by husband alone: homestead. A deed by a husband alone intended to convey simply an easement for highway purposes over the homestead was valid under the law as it stood in 1893, though not signed by the wife, although it would be void if purporting to convey the fee.
    2 Conveyances: construction: easements. In so far as a deed is ambiguous in its terms the circumstances surrounding the transaction may be considered in arriving at the intent of the parties. And as a general rule that construction will be accorded a deed which will give it validity in preference to a construction which will defeat it.
    The conveyance involved in this action is held to pass an easement only and not the fee.
    3 Same: consideration: variance by parol. The consideration ex- pressed in a deed may be shown by parol to have been greater or less, or different in form from that stated, but in the absence of fraud or mistake it is not competent to so vary the instrument to the extent of showing that there was no consideration.
    4 Same: consideration: effect of recital. The recital of a consideration in a conveyance makes a prima facie agreement ,of the grantee accepting the instrument to pay the same, and a right of action therefor exists.
    5 Pleadings: exhibits: introduction in evidence. Where a copy of an instrument is set out and made a part of the pleadings and is not denied, it is not essential that the original instrument be offered in evidence to make it a part of the record.
    6 Trial: identification and offer of exhibits : appeal: trial de novo. Where a stipulation of facts refers to a certain instrument as the original instrument relied upon in the action,' such stipulation will carry the instrument into the record without further identifying marks; still in case the identical instrument is not presented by the abstracts on appeal there can not be. a trial de novo of the action. But where as in this case the parties and the court deemed the original instrument as in evidence, and the sole issue tried related to. its validity, the decree of the lower court will not be reversed for want of a formal offer of the instrument.
    
      Appeal from Washington District Court. — How. W. G-. Clements, Judge.
    Thursday, February 10, 1910.
    This is au action to establish the right of plaintiff to an easement for road purposes over the real estate of the defendants. There was a decree for the plaintiff. The defendants appeal. —
    Affirmed.
    
      Dicker & Livingston, for appellants.'
    
      C. Thorne, for appellee.
   Evans, J.

The defendant Marie McCall is the surviving widow of J. E. McCall, deceased, who died without issue. The other defendants are collateral heirs and devisees under his will. The claim of the plaintiff is based upon a deed executed and delivered to him by J. E. McCall on March 21, 1895. The following is a copy of so much of the deed as is material for our present consideration: “Know all men that I, J. E. McCall, in consideration of the sum of $100 in hand paid by J. M. Maxwell do hereby grant, bargain, sell and convey unto the said J. M. Maxwell, his heirs and assigns, forever, the following described real estate situated in Washington County, Iowa, to wit: A strip of land for road purposes, forty feet in width described as follows, to wit: [Description.] Excepting and reserving the use and possession thereof so long as the grantor shall live, then full possession shall pass to the grantee. And the said grantor hereby warrants.the title to said premises against the lawful claims of all persons whomsoever.” This deed was duly acknowledged and recorded on tbe same day, and does not appear ever to have been called in question by-the grantor. Tbe circumstances surrounding tbe transaction were that McCall was tbe owner of a farm of one hundred acres abutting on tbe highway on tbe west side thereof, and Maxwell was tbe owner of a farm adjoining McCall’s on tbe west, which bad no access to any .highway except over tbe land of. McCall. Nor many years prior to tbe execution of tbe deed, and ever since, Maxwell bad obtained access to tbe highway over tbe lands of McCall by mere permissive license. Tbe traveled way, however, over which be bad crossed McCall’s land, was not upon tbe particular strip in dispute. Prior to tbe execution of tbe deed, Maxwell bad presented a petition to tbe board of supervisors for tbe establishment of a public highway which would traverse McCall’s land and which would give Maxwell access to this particular highway. As an adjustment of this matter between themselves, McCall executed tbe deed in question, and Maxwell abandoned tbe proceedings for tbe establishment of a public highway. After tbe execution of tbe deed, Maxwell built a dwelling and other valuable improvements upon bis land in reliance thereon. At tbe time of tbe execution of tbe 'deed, tbe wife of McCall, tbe first-named defendant herein, was insane, and has so continued ever since, and she did not join in tbe conveyance. Tbe farm in question was occupied by McCall and bis wife as their home, and so continued down to tbe time of tbe death of McCall. Tbe homestead “forty” bad never been platted or designated in any way. Tbe following is a plat of tbe premises, tbe McCall land being marked upon tbe plat, “J. N. M.” Tbe strip in dispute divides tbe land so as to leave forty acres on tbe north side thereof and sixty acres, including tbe dwelling, on tbe south side thereof:

The strip in dispute had a market value of $60 or $70 per acre. The plaintiff did not in fact pay any money for the land, although the deed stated a consideration of $100. The prayer of the first count of the petition (which is the only count we will consider), is as follows: “Wherefore plaintiff prays that this plaintiff be ordered, adjudged, and decreed entitled to the possession of the premises described in the caption of this petition for road purposes, so long as the same shall be so used, with the privilege of erecting fences thereon, and maintaining the same as a highway; that defendants and each of them be ordered to yield immediate possession of said premises to this plaintiff ; and for such other and further relief as may be deemed just and equitable in the premises; and that the defendants be adjudged to pay the cost of this proceeding.” The issue made by the answer was that the premises described in the deed were a part of the homestead occupied by the grantor and his wife, and that such deed was not signed by tbe wife, and was therefore absolutely void and of no effect. The decree entered below established the right of the. plaintiff to an easement over such strip for road purposes, and decreed the title in the defendants, subject to such easement until said strip should cease to be used for road purposes.

1. The real question in the case is whether the instrument set up by plaintiff should be construed as a deed, purporting to convey the fee title, or whether it should be construed as an instrument merely purport- . . - - _ mg to convey a right oi way over the land, the f°rmerJ then it would be void under the law in force in 1895. Barnett v. Mendenhall, 42 Iowa, 296; Goodrich v. Brown, 63 Iowa, 247; Woolcut v. Lerdel, 78 Iowa, 668; Townsend v. Blanchard, 117 Iowa, 39; Ormsby v. Graham, 123 Iowa, 212; Wheelock v. Countryman, 133 Iowa, 292. If the latter, then the instrument was valid for the purpose of granting an easement in the plaintiff, even though not signed by the wife. Chicago & S. W. R. Co. v. Swinney, 38 Iowa, 182; Ottumwa v. McWilliams, 71 Iowa, 164; Harkness v. Burton, 39 Iowa, 104; Stokes v. Maxon, 113 Iowa, 122. See, also, Orrick v. City of Ft. Worth (Tex. Civ. App.) 32 S. W. 443; Randall v. R. R. Co., 63 Tex. 586; Railroad Co. v. Titterington, 84 Texas, 225 (19 S. W. 472, 31 Am. St. Rep. 39);

In so far as the deed may be deemed ambiguous' in its terms, the circumstances surrounding the transaction may be considered for the purpose of ascertaining the intent of the parties. Barlow v. C., R. I. & P., 29 Iowa, 276; Uhl v. Ohio, 51 W. Va. 106 (41 S. E. 340). It is also a general rule that a construction which gives validity to the instrument will be preferred over a construction which defeats 'its 'validity. Barlow v. C., R. I. & P., supra; Marshall v. McLean, 3 G. Greene, 367.

In the ease of Ottumwa v. McWilliams, supra, the contract under consideration was as follows: “In consideration of one dollar in hand paid and - I, for myself, and for my heirs, executors, and assigns, do hereby covenant and agree to and with said railroad company to convey, by metes and bounds, at any time the said railroad company shall call for the same, by deed in fee simple, a strip of ground not less than fifty feet in width on each-side of the center of the track of said railroad, over and' through the above-described land.” In the Barlow case, supra-, the granting clause was as follows: “Do hereby grant and convey the said railroad company the following piece or tract of land in Polk County, in the state of Iowa, and particularly described as follows, to wit, a strip of land through the southwest quarter of,” etc. We quote from the opinion in the latter case: “When we take into consideration the situation of the parties to the deed at the time it was made, and the pi’operty which is the subject-matter of their contract, and the intention and purpose of the parties in making it, together with the language of the entire deed, we have but little difficulty in construing the deed, as a conveyance of a right of way simply. . . . But, further than this, there is another rule of construction which requires that the contract should be supported rather than defeated; that is, a construction which would make the contract legal is preferred to one having an opposite effect. If, therefore, by construing the deed as a conveyance of the fee, it would be void for uncertainty of description, as appellant’s counsel, claim; while as a conveyance of a right of way it would be valid, the language of the deed admitting of it, we should adopt the latter view, although such construction might not be the most natural or reasonable upon the . language alone.” To the same effect, see Robinson v. R. R. Co., 59 Vt. 426 (10 Atl. 522) ; Smith v. Holloway, 124 Ind. 329 (24 N. E. 886) ; Chouteau v. M. P. R. R. Co., 122 Mo. 375 (22 S. W. 458, 30 S. W. 299). The cited authorities are quite conclusive of the present case, and fully sustain the conclusion of the trial court in that regard.

II. It is urged by the appellant that the deed was void for want of consideration. While want of consideration is always a defense to. an executory contract, it may • wsll he doubted . whether in the absence of fraud or mistake, it is available as an afUrinative attack upon an executed conveyance. If so it would be quite impossible to execute a valid conveyance by way of gift of real estate. But this' point has not been argued by either party, and we do not pass upon it. The deed recites a consideration of $100. ‘ .This sum was not in fact paid. The evidence on the question of consideration was objected to by the plaintiff as incompetent. It is well settled that the recitals of consideration in a deed may be explained by. parol evidence. It may be shown that the consideration was either greater or less than, or different in form from, that stated in the deed. ' Gardner v. Lightfoot, 71 Iowa, 577. Notwithstanding this liberal rule concerning the consideration, it is alsb well settled that it is not competent to contradict the deed to the extent of showing that there was no consideration for the purpose of defeating the instrument, in the absence of fraud or mistake. Gardner v. Lightfoot, supra; McGee v. Allison, 94 Iowa, 527; Hemstreet v. Wheeler, 100 Iowa, 282; Luckhart v. Luckhart, 120 Iowa, 248.

It is to be noted further that a recital of a consid- • eration in a deed makes a prima facie agreement on the part of the grantee,' in accepting the deed, to pay such consideration, and he may be sued therefor. This agreement of itself constitutes a consideration. It is now urged by the appellants that, in case the decree below be affirmed, the defendants should recover the consideration. Their argument in this court is the first indication ■ of any desire on their part to recover such consideration.' Their answer presented no cross-bill nor counterclaim for the same. ■ The question therefore is not in the case.

III. The parties present a dispute as to the state of the record. It is urged by the defendants that the plaintiff failed to prove his title in that he failed to introduce his deed in evidence on the trial below. The deed dn question is referred to in a part of rec0rd as “Exhibit B, Needham.” Appellants present a statement from the court reporter to the effect that the deed was not so marked during the trial, but that such mark now appearing thereon was made at a subsequent date. The plaintiff appellee presents an affidavit of the trial judge identifying the deed as the original instrument that was used at the trial and referred to by the witnesses. It would have been a much simpler method for the parties to have obtained a correction of the record, if necessary, by proper proceedings in the court below. It is n'ot our province to determine the state of the record below upon affidavits and counter-affidavits. There are several conclusive reasons, however, why the alleged defect in the record is not available to the appellants here. The plaintiff set out' a copy of the deed as an exhibit to his petition. It was not denied in the answer, either by special or general denial. It was not essential, therefore, to introduce the original in evidence, although such a course would be quite usual and proper.

At. the time of the trial, in open court, the parties entered of record a stipulation as to the facts, upon which stipulation the plaintiff rested his case. Such stipulation included the following statement: “That-the . ° deed marked ‘Exhibit B, Needham,’ is the original deed executed by J. E. McCall upon which the plaintiff relies in this action.” This stipulation of itself carried the deed into the record. It was no more necessary to make further proof of it than it was to make further proof or offer of the other facts stipulated,.' It is said, however, that it was not actually marked “Exhibit B, Needham.” The marking was not essential to its character as an instrument of evidence. The only purpose of the marking was to identify it and distinguish it from other instruments. If the parties were in dispute as- to which of two or more instruments was intended to be included in the stipulation, a different question would be presented. That is not the nature of the dispute. The stipulation of facts as presented to us in appellant’s abstract shows that the parties agreed upon a certain -instrument then presented as the .original deed executed by McCall. It is manifest from this record that such deed was before the trial court as a part of the evidence. Unless the deed which is presented to us by appellee’s amended abstract is the identical deed that was included in such stipulation, then such deed is altogether missing from the record before us. In such case it follows that we do not have before- us all the evidence upon which the case was tried below, and such fact affirmatively appears from appellant’s abstract. This defect would prevent a trial de novo here and would of itself be fatal to the appellants. It is manifest, however, from the whole record, that the parties and the court all deemed the original deed as in evidence, and the sole issue made was whether it was a valid instrument. Even though the answer had contained a general‘denial, we would not be justified under such circumstances in reversing the decree below for want of a formal offer of the instrument. Watson v. Bowman, 142 Iowa, 528.

We think the decree of the trial court was right, and it is,, affirmed.  