-----Original Message-----
From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On
Behalf Of realestate@iabar.org
Sent: Friday, September 16, 2016 3:26 PM
To: realestate@iabar.org
Subject: [ISBA RealEstate] Deed in satisfaction of installment contract

Brother Mark, have W sign an Affidavit Explanatory of Title under Code
section 558.8.
W may allege that:

1) she and H both intended to hold the land as joint tenants with right of
survivorship.
2) she and H had "no intent" to hold the property in any other ownership
form, such as tenants in common.
3) deed's omission of reference to the joint tenancy = scrivener's error by
the drafter.

By law presumption must run in favor of such explanation. Thus W creates the
evidence in her favor.
Title Standard 1.1 works for me.

And, as you note, parties' intent = the critical legal point.

In re Miller's Estate, 248 Iowa 19, 79 N.W.2d 315 (1956):
" III. Of course, language creating a joint tenancy in a written instrument
gives the grantees, or payees, the rights of joint tenants. The most
important and well established of these is the right of the survivor to take
the whole property. Since the right of joint tenancy in personal property as
well as in real estate is recognized in Iowa (see In re Estate of Winkler,
232 Iowa 930, 933, 5 N.W.2d 153, 155), it follows that language which is
sufficient to effectuate a joint tenancy in a deed will be equally so in
personalty, such as stock certificates, bank accounts, or the debentures
involved in the case at bar. In Hruby v. Wayman, 230 Iowa 653, 656, 298 N.W.

639, 640, we said: 'The word 'survivor' or 'survivorship' has no equivocal
meaning * * *.' Proper words creating a joint tenancy, such as we have held
the language of the debentures to do, are always held to make a joint
estate, with the whole interest going to the survivor upon the death of the
other joint tenant, or joint tenants. See Switzer v. Pratt, 237 Iowa 788,
796, 23 N.W.2d 837, 842, in which the survivor was held to be the sole owner
of the property involved and able to make a good title by conveyance by
herself alone."

Quoted and followed in Randolph v. West, 158 N.W.2d 722 (Iowa 1968):
"Here the language in the contract to purchase real estate was clearly
sufficient to justify the conclusion a joint tenancy was contemplated. 
Compare In re Estate of Martin, Iowa, 155 N.W.2d 401, Andrew v. Citizens
State Bank, 205 Iowa 237, 216 N.W. 12, In re Estate of Miller, supra."

Both Miller and Randolph further quoted and followed in Matter of Allen's
Estate, 239 N.W.2d 163 (Iowa 1976):
"We however agree with trial court that the presumption in favor of tenancy
in common was overcome in this case. The controlling question again is the
intent of the parties. Section 557.15, The Code, states: 'Conveyances to two
or more in their own right create a tenancy in common, Unless a contrary
intent is expressed.' (Emphasis added.) We believe it is proper to look to
the warranty deed, not because it was effective as a conveyance while in
escrow, but in order to profit from whatever light it may cast upon our
determination of that intent. In Miller, 248 Iowa at 21, 79 N.W.2d at 317,
we said '* * * (a)ny language which clearly shows an intent to *168 make the
grantees in a written instrument of conveyance or ownership joint tenants is
sufficient. * * *.' "


I believe that the warranty deed cannot override important contract terms
through blanket application of the doctrine of merger.
Not where the parties clearly contemplated some contract provision
*surviving the deed*.

Phelan v. Peters, 260 Iowa 1359, 152 N.W.2d 601 (1967):
"The broad rule is that a contract to convey land presumptively becomes
merged in the subsequent deed executed in performance thereof and that the
deed speaks and the contract is silent as to all matters of conflict between
them. The rule has many qualifications, one of which is that collateral
agreements or conditions not incorporated in the deed or inconsistent
therewith will be deemed to survive for the purpose of enforcement. This
qualification is clearly expressed in an annotation in 84 A.L.R. 1018-1019,
which is supported by the Iowa cases.
 'Where a contract for the sale of land embraces stipulations other than
those relating to the conveyance of the subject-matter, and imposes upon the
vendor the duty of performing acts other than those required to assure to
the vendee the character of title stipulated for, the contract is something
more than one for the mere conveyance of the subject-matter at a designated
time, hence the execution and delivery of the deed * * * is merely the
performance of the provisions relative to the transfer of the title. It is
one of several executory acts stipulated for, therefore its performance does
not affect the vitality of the original contract as to collateral matters
which the vendor has obligated himself to perform. Accordingly, where there
are collateral undertakings in such contract which are not satisfied by a
subsequently executed deed of the subject matter, these undertakings survive
the acceptance of the deed, unless there are provisions in the deed
inconsistent with the survival of such covenants or stipulations.' Saville
v. Chalmers, 76 Iowa 325, 327, 41 N.W. 30; Carey v. Walker, 172 Iowa 236,
243-244, 154 N.W. 425; Gray v. Van Gordon, 187 Iowa 835, 839, 174 N.W. 588;
Huxford v. Trustees of Funds, etc., 193 Iowa 134, 136-137, 185 N.W. 72;
*1363 Swensen v. Union Central Life Ins. Co., 225 Iowa 428, 433-435, 280
N.W. 600; Anno. 84 A.L.R. 1008; 38 A.L.R.2d 1310.
"Vendor's stipulations in a real estate contract to make improvements are
collateral and survive the execution of a deed. 38 A.L.R.2d 1325 and cases
cited thereunder."

Cited and followed in Wetzel v. Roemerman, 737 N.W.2d 326 (Iowa App. 
2007)(Table).

Ergo, I believe this conclusion is warranted:
Vendees H & W's intentional selection of joint tenancy as their chosen form
of co-ownership, specified in the contract with vendors, survives and is not
negated by the vendors' thoughtless deed in satisfaction (that through
scrivener's error omitted H & W's ownership status).

Matter of Allen's Estate, 239 N.W.2d 163 (Iowa 1976)(Supreme Court considers
both contract and escrowed deed as part of a holistic assessment of parties'

intent.)

Hope this helps you sort out your clients' title.

David Hanson
Hofmeyer & Hanson PC
Fayette, Iowa



----- Original Message -----
From: "Mark Hanson" <realestate@iabar.org>
To: realestate@iabar.org
Sent: Friday, September 16, 2016 2:24:47 PM
Subject: Re: [ISBA RealEstate]  Deed in satisfaction of installment contract

Thanks for your input Bill.

I would agree this may be mooted in the future, but presently it is a title
objection because of death of H, and the effective date of the revision to
557.15 takes effect Jan 1, 2015.
Contract was 1988, and deed in satisfaction was 1995.

I pulled out Marshall's, and looked at merger.  The contract and deed being
looked at together, and merger of the contract into the deed - with the
proviso that, "in the last analysis, it is a question of intent"  Dickerson
v Morse, 203 Iowa 480, 212 NW 933 (1927).
"Where merger is denied, the burden of proof rests on the party so denying
to show that a merger was not intended"  Gray v Van Gordon, 187 Iowa 835,
174 NW 588 (1919).

So what does it take to accept the denial of merger.
Contract was JTWROS, giving H & W equitable title to real estate.  Which if
H had died while the contract was executory, would have passed outright to
W.
Deed was from an out of state assignee of the Vendor's interest in the
contract, which would not have known nuances of Iowa law, of presumption of
tenancy in common unless words of joint tenancy and survivorship show
contrary intent.
Surviving wife is sole beneficiary under the will of H.

Would Title Standard 1.1 apply?
Who will contest this?  Not the out of state Vendor.  It is out of title,
was paid off, and gave a deed 11 years ago.
Not H, he is dead.
Not H's executor.  W is executor.
Not kids.  Will gives everything to the W.
Not W.  She will sign Affidavit there was no "intent for merger", which
would create necessity to probate estate and spend the time and money.

That is my argument anyway.
Does anyone have any contrary thoughts?

Thanks
Mark

[cid:4188E67F-AE5A-4D5D-A4E2-AF1B3047C9A6]
       Mark V. Hanson - Attorney
________________________________
2420 128th Street, Urbandale, Iowa 50323
t: 515.868.0450   m: 515.537.9128  f: 515.276.6569
e: Mark@HansonLawPC.com
________________________________
         HansonLawPC.com

From: <Hines>, Norman W Jr
<realestate@iabar.org<mailto:realestate@iabar.org>>
Reply-To: "realestate@iabar.org<mailto:realestate@iabar.org>" 
<realestate@iabar.org<mailto:realestate@iabar.org>>
Date: Friday, September 16, 2016 at 1:52 PM
To: "realestate@iabar.org<mailto:realestate@iabar.org>" 
<realestate@iabar.org<mailto:realestate@iabar.org>>
Subject: RE: [ISBA RealEstate] Deed in satisfaction of installment contract

Isn't this theoretical question probably mooted in the future by the recent
change in 557.15 that creates a presumption of JTWROS in any transfer of
real estate to two persons who are married to each other? Having the
original contract of sale expressly held in JTWROS would just serve to
reinforce the statutory presumption. Bill

From: realestate-owner@iabar.org<mailto:realestate-owner@iabar.org>
[mailto:realestate-owner@iabar.org] On Behalf Of Mark Hanson
Sent: Friday, September 16, 2016 1:25 PM
To: realestate@iabar.org<mailto:realestate@iabar.org>
Subject: Re: [ISBA RealEstate] Deed in satisfaction of installment contract

Follow up thoughts.
Contract to h & w as joint tenants with right of survivorship accomplished
transfer of equitable title to them, which they then held as JTWROS.

Vendor held bare legal title as security for payment of the purchase price,
in the manner as a mortgage.  He held personal property, not real property.

Deed in satisfaction effected a release of that security / mortgage.

Can it be said that Vendor's personal property holding of the contract and
this deed to effect a release and satisfaction of the contract can have the
effect of changing how h & w held the title when they executed the contract
in the first place?

Or, can the JTWROS be paramount, and the deeding of the personal property of
the contract act purely as a release of the lien of the contract?

Your thoughts?

Thanks

Mark



[cid:image001.png@01D21021.3C527DD0]
       Mark V. Hanson - Attorney
________________________________
2420 128th Street, Urbandale, Iowa 50323
t: 515.868.0450   m: 515.537.9128  f: 515.276.6569
e: Mark@HansonLawPC.com<mailto:Mark@HansonLawPC.com>
________________________________
         HansonLawPC.com

From: Mark Hanson <realestate@iabar.org<mailto:realestate@iabar.org>>
Reply-To: "realestate@iabar.org<mailto:realestate@iabar.org>" 
<realestate@iabar.org<mailto:realestate@iabar.org>>
Date: Friday, September 16, 2016 at 12:59 PM
To: "realestate@iabar.org<mailto:realestate@iabar.org>" 
<realestate@iabar.org<mailto:realestate@iabar.org>>
Subject: [ISBA RealEstate] Deed in satisfaction of installment contract

I think this topic was discussed but perhaps some time ago, and I don't
recall answer.

1988 Installment contract to h & w, as joint tenants with right of
survivorship.
1995 Deed in fulfillment  of the contract references the recording
information of the installment contract, is to h & w - period.

Has the prevailing opinion been that the deed to h & w period killed the
joint tenancy with right of survivor, so that h & w now own as tenants in
common.
Or, has the prevailing opinion been that the contract language for joint
tenancy with right of survivorship survives, not with standing the deed is
silent.

Thanks.

Mark

[cid:image001.png@01D21021.3C527DD0]
       Mark V. Hanson - Attorney
________________________________
2420 128th Street, Urbandale, Iowa 50323
t: 515.868.0450   m: 515.537.9128  f: 515.276.6569
e: Mark@HansonLawPC.com<mailto:Mark@HansonLawPC.com>
________________________________
         HansonLawPC.com