(dissenting). — I am unable to concur in the majority opinion. After a careful study of the record herein, I cannot avoid the conclusion that the merits of the case are with the defendant. The majority opinion is made to rest upon the theory of constructive fraud, in that fiduciary relations existed between the parties to the deed at the time of its execution, and that the burden is upon the defendant to support the deed with extrinsic evidence and to rebut thereby a legal presumption of fraud. As to the general proposition of law thus set forth in the majority opinion, I make no controversy. As applied to this record, however, .such proposition is perhaps overemphasized in the majority opinion, and I am inclined to make that criticism upon it. The deed under consideration is an old one. Both parties to it were dead many years before this action was brought. Direct evidence from the parties themselves is therefore impossible. The extrinsic evidence upon which the defendant must necessarily rely is largely circumstantial and is to be found in the history of the family, extending over a period of .forty, years. This history is suceintly stated, in the main, in the majority opinion. I will avoid repetition as much as possible, but I cannot wholly avoid it without rendering my own statement unduly disconnected.
In 1857 the Andrews family consisted of the parents and the son, James D., and the daughters, Jessie and Margaret. The father was a drunkard and of no assistance to *533his family. He died in the early sixties. The son James I). was born in 1837. Margaret was older and Jessie was younger. Margaret was married in 1850 to one Gray, but was later separated from her husband. She had one child born in 1856, named Belle, and she is the plaintiff herein. She also was a member of the Andrews family. Her mother is known in this record as Margaret Gray, her aunt as Jessie Andrews, and her grandmother as Margaret Andrews Prior to 1857, Margaret Andrews and her son James D. had engaged in an enterprise of storekeeping at Solon, which lasted for a couple of years or more; The store was traded for the land in controversy, and other land. The land was cheap and unproductive; the family was poor. In 1857, James D. left home and obtained employment. The financial relations between him and his mother and his sisters began at this point. The only living witness who has per sonal knowledge of these matters is the sister Jessie. She was a witness on behalf of the plaintiff. She is interested adversely to the defendant in precisely the same manner that the plaintiff is. The greater part of her testimony is incompetent under the provisions of section 4604, but I shall spend no time upon that question in this dissent.. Notwithstanding her adverse interest, her testimony discloses a state of facts which tends strongly to support the transaction now under attack.
Beginning in 1857, James D. sent of his wages to his mother and sister from $150 to $200 every .year until he was married in 1871. . It is said by Jessie that his contributions ceased during his married life. But his; married life was very brief; his wife dying in 1874, leaving him with two children, a son and a daughter. At this time, James D. was in the government service in New York City. He continued his benefactions and visited his mother and sisters often. In 1879 the farm began to pay a .revenue, and he looked after it through a resident agent. It is assumed in the majority opinion that James D. got the benefit of the *534use of this farm for himself. This assumption is based wholly upon an estimate of the witness Jessie that he sent his mother about $50 a month. The record shows quite satisfactorily that the mother and sisters had complete knowledge concerning all revenues from the farm, and that whatever was done was recognized by all of them as just and proper. This appears from some letters in the record written by Jessie herself in the eighties. In the early sixties, James took out a life insurance policy for $10,000 in favor of his mother and kept it in force throughout his life.
In 1889 he invited his mother and sisters to come to New York and make their home with him. Such arrangement was entered into. The family at Iowa City at that time consisted of the mother and two daughters and Mabel Stuart, a daughter of the plaintiff herein by her first marriage. James D. rented a residence near Sheepshead Bay, which was occupied by the family until it was broken up by death. It is urged in appellee’s argument and somewhat assumed in the majority opinion that this invitation was extended by James D. for his own advantage and in order to obtain the help of his mother and sisters in taking care of his own children. The record warrants no such assumption. His children were already quite grown up and were away at school. The oldest, the daughter (now Armagast, the defendant herein), had attained her majority. The son became engaged in business and never made his home there after such date. Prior to 1889 James D. had already become a mere boarder. It is too plain for argument that the home thus provided operated greatly to the advantage of the mother and sisters and the niece Mabel. The services rendered by the mother and daughters which is much paraded in argument was a service principally to themselves. Jessie testified on this subject as follows:
The circumstances under which the family moved to Brooklyn were these: My brother had his two children in *535school. He was boarding. He asked me to come on and stay with his daughter Mary. She wished to attend some concerts down at Brighton Beach. I spent the summer of 1888 with him. The next summer she came out and stayed with us. Her father came after her. He asked Mother if she would not come to New York and keep house for him. He was tired living in a boarding house. He was going to build a house. The family moved to Brooklyn on his solicitation. He was boarding, and he wanted a home for his children. He thought it would be nice for us all to be together. He only hesitated on account of Mother’s age, for fear she might not like the change; but she was willing to go. We were to live with him as one family. He expected to build a house for us. One inducement was that my sister was very fond of flowers, and he was planning- a greenhouse for her. We removed to Brooklyn in November, 1889. He advanced the money to go there. Mabel Stuart went with us. She was Mrs. Gray’s granddaughter, and the daughter of Mrs. Curtis, the plaintiff. She was a member of our family at the time we removed to Brooklyn. Her mother was living in Omaha part of the time and part of the time in St. Paul. Mrs. Curtis was unfortunate in her first marriage and left her husband. She had to go to work. .She was a stenographer and held a very good position, but left Mabel with us. I wrote to my brother before going to New York and asked him how it would be about Mabel coming. Mrs. Gray thought perhaps there would be objection to it. He wrote back that she was perfectly welcome to come with the rest of us. I do not think Mother would have gone to New York without Mabel. Mabel was then eight years old and had lived in the family four years. My sister and I did most of the work of the family. My brother’s two children were in school. Mabel was in school and Mother was not able to do very much work. We never had any servant except a woman in to wash two or three times during that time. His daughter did some sewing for herself after she was out of school. Aside from my board, I do not think I ever got more than $50 in money; that is, $50 a year. It did not cover the expense of my clothes. Some of those were given to me. The cost to my brother for our clothes I could hardly say. We did not have such a lot of clothes. We made them ourselves. I think, to take it on an average, it would not be more than $100 a year for me. Mrs. Gray got a little more than I did. *536I do not know whether she got more than $100 a year or not. Mother required very little. He looked after us all as my father would look after his children. He always seemed like a father to me. He always seemed to regard us with love.
James D. was not a man of wealth. At the time of his death he had been in the government service for a great many years, beginning with a salary of $1,500, which had been increased to $2,400 in the last ten years of his life. This was the highest salary he had ever received. It is the testimony of Jessie that he bore every expense of every kind for the family. It goes without saying that he could not bear such expense out of a salary of $2,400, and it may be fairly assumed that the proceeds of the farm were devoted to that end. The farm was in the mother’s name. I shall’assume for the purpose of this dissent that it belonged to her both legally and equitably, although it was once in the name of James D. and was conveyed to his mother while he was yet a minor. But I can entertain no reasonable doubt upon this record but what it was the understanding of the family that James D. was to have this land. But for his contributions for more than twenty years this land could not have been kept in the family. On October 8, 1896, the mother conveyed this land to her son James D. According to Jessie’s testimony, the mother talked with her about it and showed her the deed before she signed it. She signed the deed in the absence of James D. and in the presence of Jessie alone. She not only signed it, but she wrote her name in its appropriate blank space in the body of the deed. It was two or three days after she signed it before she went to the city to acknowledge it. It was acknowledged and witnessed in a formal manner.'The witnesses to the deed have both testified as witnesses herein. Jessie was present with her mother. There was nothing in the conduct of the parties to attract the particular attention ’ of the witnesses. It is shown practically without dispute that the mother, although eighty-three years of age, was *537remarkably bright and intelligent and well preserved. She lived for seven years thereafter. She was not lacking in practical business experience. She had not only engaged in a store business in an early day, but she was also the postmistress of Solon. When she came to New York in 1889, she brought with her a little over $4,000 which she had saved out of her son’s remittances. During her entire stay with her son she kept that as a fund for herself, spending none of it. Her habits of consultation on business matters are described by Jessie as follows: “Q. To whom did she go for advice and consultation in regard to any matters in which she was interested during the time she was in New York. A. Mj- brother, and she talked things over ivith me always. Q. What were the relations between her and your brother? A. The very best, always.”
There was no secrecy about the execution of the deed. It was known to each member of the family. Considering the age of the mother, the sisters, Jessie and Margaret, might well have deemed their interests affected by such a transaction. The fact that these never questioned it in any way, but acquiesced in it, as a matter of course, is a strong circumstance indicating that the conveyance was in full accord with the family understanding. That this continued to be the state of mind of Jessie for many years after her mother’s death is indicated by a letter written by her in August, 1907, from which I quote as follows: “When mother deeded the land to by brother, she was not obliged to do so by law, but from a sense of justice for what he had done for her. He promised many things. My sister and I were to have a home and enough to keep us. We had nothing in writing, and I do not' think he dreamed but what :we would be all right. As far as I am concerned I want nothing, but my sister left a daughter who has to be kept. ’ ’ Going back for the moment to their early experience, the record contains a letter written in 1865 by Margaret Gray, the mother of the plaintiff, under whom plaintiff claims. I quote the following reference *538therein to her brother James: “My brother did not get home until after the funeral. There are very few young men like him. He has supported the family for' several years. He is surely one of earth’s noblemen. My husband died four years ago the first of last January. I have a little girl eight years old. She has always been very sickly, but is getting better now. My sister Jessie is quite a large girl and is on the fair way to be a good scholar. My brother is going to give her a good education. ’ ’ ■ The plaintiff herself testifies on that subject as follows:-“Up to the time of my marriage as far back as my recollection goes, I always lived in the family of my grandmother. It was a matter of common knowledge that James D. Andrews was assisting in the support of the family. That is so as far back as I can recollect.” .Since the writing of that letter, the granddaughter Mabel, the daughter of the present plaintiff, came into the family. The history of Mabel is recited by Jessie in her testimony as follows: “She had a daughter, Mabel, who was born in 1881. Mabel came into our home when Mrs. Curtis left her husband. She was then about three or four years old, and she continued to make her home with us. She went to New York with us, was educated, and her support and education was contributed to by James D., the same as he contributed to the support of myself, my mother, and Mrs. Gray. Mabel had no property of her own. After she went to New York, her mother sent her some boxes of clothing. Aside from this, she was raised, educated, and clothed by James D.” Her mother, the plaintiff herein, gives it as follows: “My mother had an income until she went to New York. She derived it from dressmaking. I visited the family in New York. They were supported by my Uncle Jim. My daughter went to the public schools and then to a boarding school at Ft. Edwards, called the Ft. Edwards Seminary. I did not send her. I could not afford it. Well, I had something to do with the education of my daughter. I paid for some of her painting lessons. I always sent Mabel money when I could, but *539the fact is I was not able to pay for her - education. It devolved largely on James D. Andrews. Don’t know whether my daughter graduated from the public schools. The expense of' sending my daughter one year to the institute was not paid by Uncle Jim. It was defrayed by the family. Uncle Jim was dead then. The last time I saw Uncle Jim was in the year of 1889, ten years before his death. I did not see my grandmother during that ten years.”
The conduct of the parties subsequent to the making of the deed is very significant, not only in its acquiescence, but in disclosing their understanding of the transaction. The deed purported in terms to have been made “for several valuable considerations.” Jessie discloses her mother’s understanding subsequent to the execution of the deed as follows: “ Q. Did you have any talk with your mother about the deed from the time it was acknowledged in New York until her death? A. Yes, sir. Q. What was it? Well, during my brother’s life she always spoke with reference that he would do what was right. I know the time when my brother deeded the land in question to Mary, now Mary Armagast. I knew of the conveyance. Q. After your brother’s death, did you have any talk with your mother about the land ? A. Yes, sir; she talked about it. Q. What did she say? A. She thought things were always going the same as they had when my brother was alive, the house would be kept, and everything would go on the same. She thought that'was understood.”
About two years after the execution of the deed, James D. executed a conveyance to the land to his two children. This was known to the mother and the sister and was acquiesced in. This conveyance was not in fact delivered. But in the early part of the year 1900 and about three months before his death, while he was helpless in his sickness, he executed a conveyance to his daughter Mary, the defendant herein, and this was known to the mother and to the sisters and acquiesced in. In 1899 James D. executed a bill of sale of all the farm *540products on the place to his daughter Mary. He was at that time physically helpless and unable to sign his own name except by a mark. That instrument is in evidence. It is conceded to be in the handwriting of Jessie Andrews. She prepared it and guided the hand of her brother in the making of his mark thereto. There was full acquiescence thereto. This also was known to the mother. James D. died in May 1900. The life insurance already referred,to was still in force payable to his mother and was collected by her. It is surely a fair inference that this was at least one of the considerations referred to in the deed of conveyance. That this insurance figured in the mutual considerations of the family is disclosed somewhat unwittingly in the testimony of Jessie. After collecting this insurance, the mother turned it over to Jessie. This is explained by Jessie in her testimony as follows: “It was a part of my brother’s wish that the insurance should be turned over to me.” Jessie also received from her mother the fund of $4,000. The dealing of the family with the daughter Mary after the death of James D. is entitled to consideration. It appears that in 1898, about the beginning of the sickness of James D., and just before he went away upon a trip for his health, a settlement was had between him and his mother whereby he executed to her his note for $1,200. The mother held this note unpaid at the time of the death of James D. The daughter Mary paid this note. She also paid the rent on the home for several years and until after the family was broken up by the death of the mother and Margaret Gray. These performances on her part were in pursuance of the mutual understanding of the family and were in accord with the understanding of the mother as testified to by Jessie. She was under no obligation to do these things, except as she had stepped into the shoes of her father in the ownership of the land and was for that reason performing his obligations. These undertakings, therefore, ought to be considered as a part of the consideration contemplated by the parties in the recitals of the deed. After the death of James D. the wit*541ness Christy, of Iowa, visited the family with a view of becoming agent for the land. He did afterward become such agent. It appears from his testimony that Mrs. Andrews spoke of the land as “Mary’s land.”
There is another circumstance in this record that tends to explain why no provision was made by Mrs. Andrews for Mrs. Margaret Gray in the distribution of her estate. There was an older son, Peter, who went to California in an early day and spent his life there. He never married. At the time the deed in question was made, the plaintiff herein was in California with her Uncle Peter. He died intestate shortly thereafter leaving a substantial estate. The plaintiff received it all. Margaret Gray had been the most dependent of the family and had received the most assistance. In a sense, she brought into the family the burden of three generations. Her brother had supported not only her, but her daughter and her granddaughter. She was the least capable one of the family. According to Jessie’s.testimony, she received all her mother’s money with the understanding that she would take care of Margaret. This was what James had done for forty, years before the conveyance was made to him, and it is a fair inference from this record that he was undertaking to do so to the end. It is undisputed in this record that Mary bore every, expense needed by Margaret from the time of her father’s death to the time of Margaret’s death.
Mrs. Andrews died in 1903. Margaret Gray died in 1906. Before the death of Mrs. Gray every statute of limitations under the laws of New York had run against an action to assail the conveyance. During all that time it had never been questioned and never was questioned until the plaintiff brought this action in 1909. The conduct of all parties interested directly or indirectly was at all times consistent with the good faith of the conveyance and was at all times inconsistent with any other theory. It seems to me that this kind of evidence ought to be more satisfactory as extrinsic proof than any mere words. The fault that I find with the majority opinion *542at this point is that it has looked for words and has ignored the long years of mutual and consistent conduct of the parties. If such a transaction as this is to be called in question long years after the death of the parties thereto, I know of no more satisfactory form of evidence than the long-continued conduct of the interested parties. I feel constrained to say, therefore, that the deed in question represented the intelligent act and wish of the grantor; that it was fully understood both by the parties thereto and by the other members of the family; and that there never was a moment of misunderstanding on the subject.
The. original cost of this land was about $1,000. The conceded contributions of the young man to his mother from 1857 to 1871 alone would have paid for it more than twice over. Without these contributions, the mother must have sold it and absorbed the proceeds in living expenses. Instead of investing his money in property for himself, he gave it generously to his mother.
The law could give him no cause of action for his generosity, but the ‘mother could. She recognized her moral obligation and distributed her property accordingly. From the parental point of view it was just.
According to-Jessie’s understanding, as heretofore quoted from her letter of 1907, the conveyance was made “from a sense of justice for what he had done” and upon promises of continued provision for support of the family. These promises of support were faithfully performed by James while he lived, and, after his death, by his daughter as his successor in title.
By the same arrangement the life insurance went first to the mother, and then to Jessie. If James D. had known that his daughter took nothing by his conveyance of the land to her, surely he would have made other provision for her. The only other provision he could have made for her was to make her payee of his life insurance. The mother and sisters not only availed themselves of the immediate fruits of the eon*543veyance during the life of James D. and of his life insurance at his death, but they accepted thereafter years of performance by his daughter Mary. And now after the full performance, and after the death of the parties to the transaction, and after the expiration of thirteen years, it has remained for a descendant to come into the Iow'a courts to ask relief against the conveyance. It seems clear to me that she is entitled to none.
II. I am not fully satisfied with the majority opinion of the question of the statute of limitations, nor am I ready to say that it is erroneous. If it is not erroneous, it is because of legislative oversight. The parties were all residents of New York. Every statute of limitations in their own state had run against them. If they were not barred in this state, it is because there is no statute of limitations applicable to them. An action could be brought twenty years hence as well as now. It is a deplorable state of the law, to say the least.
III. I am fully convinced that the action ought to be deemed barred by laches. If an action had been brought in New York to declare the conveyance fraudulent, it is clear that a plea of laches would lie as being kindred to the plea of statute of limitations. To allow the statute of limitations to run before bringing an action is prima facie laches. If failure to bring this action before 1909 would be deemed laches by the courts of the state of the parties to the. transactions, it ought to be deemed such here. The long delay has resulted in manifest disadvantage to the defendant. Especially is this so, if she is required to support her title by positive and detailed and direct extrinsic proof. I do not care to discuss this point further than to cite two'of our previous eases and adopt here what we said there. Mathews v. Culbertson, 83 Iowa, 434, McBride v. Caldwell, 142 Iowa, 228.
I would award decree to the defendant on the merits.
Sherwin, J. — I join the above dissent of Judge Evans.