
                        IN THE SUPREME COURT OF IOWA

                              No. 136 / 04-1012

                           Filed February 17, 2006


DONALD MCNERTNEY, as Executor of the Estate of HAROLD J. MCNERTNEY,

      Appellee,

vs.

THOMAS KAHLER,

      Appellant,


CHARLES MCNERTNEY,

      Intervenor-Appellee.



      Appeal from the  Iowa  District  Court  for  Kossuth  County,  Don  E.
Courtney, Judge.

      Defendant  appeals  summary  judgment  ruling  that   concluded   deed
alteration purporting to make defendant a grantee was a nullity.  AFFIRMED.

      Harold W. White of Fitzgibbons Law Firm, Estherville, for appellant.

      Eldon J. Winkel, Algona, for appellee.


      Thomas W. Lipps of Peterson & Lipps, Algona, for intervenor-appellee.

LAVORATO, Chief Justice.
       In  this  declaratory  judgment  proceeding,  Donald  McNertney,   as
executor of the Estate of Harold J. McNertney, sued Thomas Kahler to have  a
deed declared invalid.  Before he died, the decedent  altered  the  deed  by
adding Kahler as a grantee and then recorded it.   The  executor  moved  for
summary judgment, which the district court granted.  We affirm.
      I.  Scope of Review.
      A party seeking a declaratory judgment is entitled to move for summary
judgment.  See  Iowa  R.  Civ.  P.  1.981(1).   Under  Iowa  Rule  of  Civil
Procedure 1.981(3), summary judgment is appropriate  only  when  no  genuine
issue of material fact  exists  and  the  moving  party  is  entitled  to  a
judgment as a matter of law.  In ruling upon a motion for summary  judgment,
the   court   considers   “the   pleadings,    depositions,    answers    to
interrogatories, and admissions on file, together with  the  affidavits,  if
any.”  Iowa R. Civ. P. 1.981(3).  “No  fact  question  exists  if  the  only
dispute concerns the legal consequences flowing from undisputed facts.”   In
re Estate of Beck v. Engene, 557 N.W.2d 270, 271 (Iowa 1996).  We  therefore
examine the record before the district court in deciding whether  the  court
correctly applied the law.  Id.
      II.  Facts.
      The record before the district court in  this  case  consists  of  the
pleadings and affidavits.  Based on this  record,  we  glean  the  following
undisputed facts.
      On July 27, 1994, Gerald J. Menke  agreed  to  sell  on  contract  the
following described real estate to Harold J. McNertney:

      The East Half of the Southeast Quarter (E½SE¼) of  Section  Twenty-two
      (22), Township Ninety-eight (98) North, Range Twenty-nine  (29),  West
      of the 5th P.M., Kossuth County, Iowa.

The contract was recorded on August 5, 1994.  On the same day,  a  statement
of escrow agent was recorded.  The statement was dated  July  27,  1994  and
stated  that  an  instrument  of  conveyance  (concerning  the  real  estate
described above) had been deposited  with  the  escrow  agent.   The  escrow
statement provided that the deed was to be delivered  to  Harold  upon  full
payment of the contract price.
      Upon payment of the purchase price, the deed that had been  placed  in
escrow was delivered to Harold.  Thereafter he added to the deed  after  his
name as grantee the following:  “and Thomas Kahler as joint tenants and  not
as tenants in  common  with  full  rights  of  survivorship.”   Harold  then
recorded the deed and later passed away.
      III.  Proceedings.
      The executor filed a petition for declaratory  judgment  in  which  he
alleged all of the above facts.  Kahler  filed  an  answer  admitting  those
facts.
      In his motion for summary judgment, the executor  asked,  among  other
things, that the court declare void  the  deed  naming  Kahler  as  a  joint
tenant.  In the meantime, the district court granted a motion  to  intervene
filed by Charles McNertney, a beneficiary of Harold’s estate.
      Before the district court ruled on the motion  for  summary  judgment,
the intervenor filed an affidavit of attorney Martin W.  Peterson.   In  his
affidavit, Peterson stated that in his search of the records of the  Kossuth
County Recorder’s office he located the real estate contract,  statement  of
escrow agent, and  warranty  deed  mentioned  in  the  executor’s  petition.
Peterson attached copies of these documents to his affidavit.
       The  district  court  granted  the  executor’s  motion  for   summary
judgment.  The court ruled that there were no facts in issue  and  that  the
only dispute concerned the law.  The court concluded that Harold’s  addition
of Kahler’s name as a grantee on the deed was a nullity because  (1)  Harold
did not sign the altered deed and (2) Harold  made  the  alteration  without
the original grantor’s knowledge.
      Kahler appealed.
      IV.  Issues.
      Kahler raises two issues.   First,  he  contends  the  district  court
erred in granting the  motion  for  summary  judgment  because  it  was  not
supported as required by Iowa Rule of Civil  Procedure  1.981.   Second,  he
contends the district court  should  have  denied  the  motion  for  summary
judgment because the admitted allegations of the petition show that  Harold,
as grantee, added Kahler as a joint tenant before the deed was recorded.
      V.  Analysis.
      A.  Support  for  summary  judgment  motion.   The  executor  filed  a
statement of material facts in support of his motion for  summary  judgment.
In that statement, the executor states that the material facts  are  not  in
dispute and relies on written findings of fact prepared by  attorney  Robert
A. Dotson, who was appointed by the court to  investigate  facts  pertaining
to title to the real estate that is the subject of this proceeding.
      In his resistance to the motion for summary  judgment,  Kahler  stated
that this statement by Dotson was not in the form of an  affidavit  and  was
not made on personal knowledge as required by Iowa Rule of  Civil  Procedure
1.981(5).  On appeal, Kahler again contends that Dotson’s statement was  not
in the form of an affidavit as required by rule 1.981(5).  For this  reason,
Kahler  argues,  the  district  court  could  only  look  to  the   admitted
allegations in the pleadings,  implying  that  those  allegations  were  not
sufficient to allow the district court to rule on the legal issue.
      Contrary to Kahler’s belief, we think the admitted allegations of  the
petition, which included the deed  in  question,  were  sufficient  for  the
district court to rule on the legal issue.  Moreover,  Peterson’s  affidavit
provided competent documentary evidence to support those  allegations.   The
district court properly considered those  documents.   See  Neoco,  Inc.  v.
Christenson, 312 N.W.2d 559, 560 (Iowa 1981) (noting that  the  trial  court
has discretion to allow late filings on motions for summary judgment).
      We conclude the motion for summary judgment was adequately  supported.
We further conclude the admitted allegations of the  petition  provided  the
district court with a record of undisputed facts  sufficient  to  raise  the
legal question the court decided.  We next  consider  whether  the  district
court correctly decided the legal issue.
      B.  Addition of Kahler as a grantee.  Kahler contends  that  Iowa  law
permits the alteration of the grantee provision of a deed after delivery  so
long as either the grantor or original grantee  knew  of  the  change.   For
reasons that follow we disagree.
      A deed to be operative as a transfer of real estate must be delivered.
 23 Am. Jur. 2d Deeds  §  102,  at  141  (2002).   “[R]ecording  of  a  deed
create[s] a presumption of sufficient delivery and  fix[es]  the  time  when
the deed became effective.”  Schenck v.  Dibel,  242  Iowa  1289,  1292,  50
N.W.2d 33, 35 (1951).
      When Harold received the deed from Menke out of  escrow  and  recorded
it, we can presume there was sufficient delivery and therefore an  effective
transfer of Menke’s interest to  Harold.   See  Iowa  Code  §  557.3  (2003)
(“Every conveyance of real estate passes all the  interest  of  the  grantor
therein, unless a contrary intent can be reasonably inferred from the  terms
used.”).  Therefore, once title passed to  Harold,  Menke  could  no  longer
transfer any interest in the property to  Kahler  because  he  had  no  such
interest to convey.  The only way that Harold could convey his  interest  to
Kahler would be by a  conveyance  recognized  by  the  law.   Therefore  the
addition of Kahler’s name to the grantee portion of the deed was a nullity.
      Our analysis is supported by this passage in Ransier v. Vanorsdol:

      For if the grantee of land alter or destroy his title  deed,  yet  his
      title to the land is not gone.  It passed to him  by  the  deed.   The
      deed has performed its office as an instrument of conveyance, and  its
      continued existence is not necessary to the continuance  of  title  in
      the grantee, but the estate remains in him  until  it  has  passed  to
      another by some mode of conveyance recognized by the law.

50 Iowa 130, 134 (1878).  To the same effect is the following opinion  found
in Marshall’s Iowa Title Opinions and Standards:

      It would seem that the act of a grantee in striking out his  name  and
      substituting that of another before recording a  deed  is  a  material
      alteration and would void the instrument.  It would have been a simple
      matter for the original purchaser  to  record  the  deed  and  execute
      another instrument to the intended substitute.

George F. Madsen, Marshall’s Iowa Title Opinions and Standards § 4.2(C),  at
97 (2d ed. 1978).
      VI.  Disposition.
      In sum, based on the undisputed facts in this record, we conclude  the
addition of Kahler’s name as a grantee in the  deed  was  not  effective  to
transfer Harold’s interest in the property to Kahler.   The  district  court
was therefore correct  in  not  only  considering  the  motion  for  summary
judgment, which we conclude was adequately supported, but also  in  granting
it.  We therefore affirm the court’s ruling.
      We have considered  all  of  the  contentions  and  arguments  of  the
parties.  Those we have not  addressed  we  find  lack  merit  or  were  not
properly preserved.
      Affirmed.
