Given the broad and helpful doctrine of merger, Mr. Hockenberry, I think you may obtain the deed in satisfaction and file the surviving spouse's affidavit. I would accept title on those grounds.
Anyone challenging the title subject to merger of contract with deed bears the burden of proof to say the parties intended something other than JTWROS.  
I suspect the burden level is "clear and convincing" but don't find that the courts have said so.

Gray v. Gordon, 187 Iowa 835, 174 N.W. 588 (1919):
"The execution of the deed presumably is the consummation of the contract, and parties thereafter look alone to the deed for conditions of the transfer; and, where merger of the contract into the deed is denied, the burden of proof rests on the party so denying to show that a merger was not intended. Gainey v. Anderson, 87 S. C. 47, 68 S. E. 888, 31 L. R. A. (N. S.) 323. See 10 R. C. L. 667."

Payton v. DiGiacomo, 874 N.W.2d 673 (Iowa App. 2015):
"It is fundamental that when a deed is accepted in compliance with the terms of a real estate contract, the contract is merged in the deed. Dickerson v. Morse, 203 Iowa 480, 212 N.W. 933, 934 (Iowa 1927). That presumption is subject to “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.” Phelan v. Peeters, 260 Iowa 1359, 152 N.W.2d 601, 602 (Iowa 1967) (concluding contract requirement that seller pay paving assessment did not merge into deed). The burden of proof to show the parties did not intend the contract would merge into the deed is on the party challenging the merger. Gray, 174 N.W. at 590."

Perhaps the deed should recite the date of final satisfaction of the contract, and further recite that passage of the title relates back to date the contract was executed. 
The relation-back doctrine may assist you here.
Cavender v. Smith's Heirs, 5 Iowa 157 (1857): 
"“It is a general rule, with respect to the doctrine of relation, that it shall not do wrong to strangers; as between the same parties, it may be adopted for the advancement of justice.” Jackson v. Baird, 4 Johnson, 230."

As the only persons concerned with the 'relation back' of the deed to contract are H & W, I think the old citation above covers them nicely.

David Hanson
Hofmeyer & Hanson PC
Fayette, Iowa




----- Original Message -----
From: "Justin Hockenberry" <realestate@iabar.org>
To: realestate@iabar.org
Sent: Wednesday, June 22, 2016 6:22:37 PM
Subject: [ISBA RealEstate]  Contract Vendee's Death and Deed in fulfillment

H & W purchase farm on installment contract executed and recorded prior to 01/1/2015.  H & W are simply listed as husband and wife on contract, not as joint tenants.

Contract paid off last fall.  No deed in fulfilment ever provided.  No abandonment issues etc. at this time.

H died three weeks ago.  All other real estate is held in JTWROS with W.

If a deed in fulfillment is executed and recorded after H's death naming H & W as joint tenants with full rights of survivorship, can W avoid probating H's estate and obtain good marketable title by signing an Affidavit of surviving spouse or will the discrepancy between the grantees' estates on the Contract and Deed in fulfilment(stated another way, their equitable vs. legal titles)  create such a cloud on title that title will be unmarketable (absent a probate of H's estate or a 9.8 affidavit and the passage of five years)?

W is not likely to live much longer and sale within five years is likely.

Thanks for your input.


Justin D. Hockenberry, Attorney
Cambridge Law Firm, PLC
707 Poplar Street
PO Box 496
Atlantic, IA 50022
Phone: (712) 243-1663
Fax: (712) 243-3799
jdh@cambridgelawfirm.com