#### Mary A. Lawless v. Annie M. Stamp and Joseph Stamp, Appellants.

1 Evidence: recitals in deed. Recitals in a receiver's deed of his-appointment, the order of sale, and the sale to grantee, are not, as-against a third person, *prima facie*evidence of his appointment and authority to make the conveyance, and the court’s indorse*602ment of its approval on such receiver’s deed is not of itself sufficient to dispense with proof of the facts recited. Henderson v. Robinson, 76 Iowa, 603, overruled.

2 •Quieting Title: demand: *Attorney'» fees.*Under laws Twenty-fifth General Assembly, chapter 103, providing that if, before action brought to quiet title, plaintiff shall request of defendant a quit. claim deed, and tender the expense thereof, and the latter fails to comply, the court may, if plaintiff is successful, tax attorney’s fees for him, such fees cannot be taxed unless the request was made directly of defendant.

2 Rule applied. Demand for deed before bringing suit to quiet title, upon an agent of defendant not authorized to make it, is not sufficient to authorize a taxation of any attorney's fee against defendant.

*Appeal from Blade Hawlc District Gourt.*— How. A. S. Blahs, Judge.

Wednesday, May 24, 1899.

Action in equity to quiet title. Decree for plaintiff. Defendants appeal.-1-

*Reversed.*

*H. 0. Iiemenway*for appellants.

*LI. E. Long*for appellee.

Wateeman, J.

The property in dispute consists of lots •6, Y, and 8 in block 8 in Cameron’s Second addition to Cedar Falls. Both parties claim title through one Jeremiah Mosher. On May 1Y, 1869, Mosher executed a mortgage on the property to the Charter Oak Life Insurance Company. In an action in which Annie Stamp, the present defendant (then Annie Kaynor), was a defendant, this mortgage was foreclosed; and at a sale under such decree the property was bid in by the insurance company named, and in due time a deed was executed to it therefor. Plaintiff claims title through a deed from the receiver of said company. Defendant’s title comes in this wise: Mosher, by warranty deed, •conveyed to one Leddington,.subject to the mortgage men*603tioned. Leddington, by like deed, also subject to tbe mortgage, conveyed to one Winter. Winter and bis wife on December 20, 1875, conveyed by similar deed, but with no mention of tbe mortgage, to defendant Annie Stamp, by ber tben name of Kaynor.

1 II. Tbe principal question discussed by counsel is whether the recitals in tbe deed from tbe receiver of tbe Charter Oak Life Insurance Company are *prima facie*evidence of bis appointment as such, and of bis authority to make tbe conveyance. This deed recites the pendency of an action in tbe circuit court of tbe United States, wherein the Charter Oak Life Insurance Company was plaintiff, tbe appointment of tbe grantor as receiver, an order of sale, and tbe fact of such a sale to plaintiff. Tbe • deed also bears this indorsement: “This deed of conveyance is hereby approved. O. P. Sbiras, Judge.” jThe admission of this instrument in evidence was objected to by appellants, and tbe point is now urged that there should have been preliminary proof made of tbe facts recited, so far as relates • to tbe grantor's right to convey. Appellee relies upon tbe •cases of *Beal v. Blair,*33 Iowa, 313, and *Henderson v. Robinson*76 Iowa, 603, as supporting ber claim that tbe recitals in tbe deed were *prima facie*evidence of all tbe facts therein statéd. We are not inclined to accept tbe doctrine thus contended for, on tbe authority of these cases. In *Beal v.*Blair, tbe grantor’s authority as trustee to make tbe deed was shown aliunde, and tbe bolding was that tbe recitals in tbe instrument were *prima facie*sufficient to show that'the requirements of tbe trust deed under which be acted bad been complied with. *Henderson v. Robinson*lends some support to appellee’s contention. Tbe deed in that case was made by a commissioner appointed by tbe court in which tbe action was tried, and tbe ground of tbe decision is that a court will take judicial notice of tbe contents of all its own records. This was announced as a rule of evidence. But it has been overruled, in effect, in this respect, by *Shipley v.*
      *604Reasoner, 87 Iowa, 555, in which this court held that it will not assume, as matter of evidence, knowledge even of the contents of a pleading in the case on trial, when it has been superseded by another pleading. The doctrine generally recognized is that recitals in a deed are not evidence against a person not claiming under it. 1 Greenleaf Evidence, section 23; 1 Phillips Evidence, 217; Starkie Evidence, 578; *Carver v. Jackson,*4 Pet. 1-83. In *Hughes v.*Holliday, 3 G. Greene, 30, we held that a recital in a deed, purporting to be executed by an attorney in fact, of the existence of a power of attorney, was no evidence of such authority, against a stranger to the deed; that the power of attorney should be produced, in order to lay the foundation for the introduction of the deed in evidence. So we have held that a recital in a deed that the grantors are the heirs of another is no evidence of such a fact. *Costello v. Burke,*63 Iowa, 361. See, also, *Soukup v. Investment Co.,*84 Iowa, 448; *McCarty v. Rochel,*85 Iowa, 427; *Potter v.*Washburn, 13 Vt. 558. In the absence of a statute, the recitals in an official deed, even, are not evidence, against strangers, of the facts stated. *Bowen v.*Bell, 20 Johns. 338; *Seechrist v. Baskin,*42 Am. Dec. 251. But appellee claims something for the deed in question because of the indorsement of approval thereon. Such an indorsement is not in itself sufficient to dispense with evidence of the facts recited in the instrument upon which rests the grantor’s authority to convey.

*605
      2
      *604III. The plaintiff claimed attorney’s fees, under chapter 103, Laws Twenty-fifth General Assembly, and was allowed the sum of fifty-five dollars by the trial court. Additional fees are now claimed on account of this appeal. By the statute mentioned it is provided that if the plaintiff, before action brought, shall request of the defendant a quitclaim deed, and tender the sum of one dollar and twenty-five cents, as the expense thereof, then, if defendant fails to execute such conveyance, and plaintiff is successful, the court may, in its discretion, tax as part of the costs a reasonable *605attorney’s fee for tbe use of plaintiff, not to exceed tbe sum of twenty-five dollars for tbe first forty-acre tract or lot, and a further sum, not to exceed fifteen dollars, for eacb additional forty-acre tract or lot. Tbe request made in tbis case was in writing, sent by mail. It was directed to defendant Annie M. Stamp, but was received and answered by one George E. Winter, wbo professed to be an agent for Mrs. Stamp. There is no evidence that Mrs. Stamp bad any knowledge of tbe demand. Tbis statute is penal in its nature. It should be strictly construed. Tbe request for tbe deed should be made of tbe party who is to execute tbe instrument. If it is in any case sufficient to make demand on an agent, it can only be when tbe agent is vested with power to make a deed. There is no such showing here as to Winter. It does not appear that be bad any authority to comply with tbe request, or to make any response thereto. No attorney’s fees should have been allowed.

IY. Tbe objections made by appellee to tbe record are without merit. As appellee was doubtless misled by tbe language used in *Henderson v.*Robinson, and thereby induced to rely upon the receiver’s deed speaking for. itself, we shall remand the case, that she may have an opportunity to offer evidence in its support in tbe court below.—

REVERSED.