Anderson v. Anderson

• Decision Date: 11 January 1944
• Docket Number: 46295.
• Citation: 12 N.W.2d 571,234 Iowa 277
• Parties: ANDERSON et al. v. ANDERSON (two cases).
• Court: Iowa Supreme Court

12 N.W.2d 571

234 Iowa 277

ANDERSON et al. v. ANDERSON (two cases).

No. 46295.

Supreme Court of Iowa

January 11, 1944

Thompson & Weible, of Forest City, for appellants.

Senneff & Berge (of Garner, Senneff & Duncan) and R. F Clough, all of Mason City, and Henry C. Meyer, of Britt, for appellees.

OLIVER Justice.

The will of Andrew Anderson was admitted to probate October 20, 1924. After devising to his wife the homestead, in Garner, Iowa and the household goods, it provided in part:

"I also give, devise and bequeath to my said wife Mary Anderson and direct that there be paid to her by the devisees named in paragraphs 3, 4 and 5, hereof, the sum of Three ($3.00) Dollars per acre each year during her natural life for each acre of land so devised by the said Paragraphs 3, 4 and 5 and that the provisions contained in this will for my said wife shall be in lieu of all her dower rights or thirds in my estate.

"Third I give, devise and bequeath to my beloved son Elmer H Anderson, the farm known as the Home Farm *** (describing a 280 acre tract in Hancock County, Iowa.)

"I further direct that my said son Elmer H. Anderson shall pay to my said wife, Mary Anderson, the sum of Three and no/100 ($3.00) Dollars per acre each year during the life of my said wife, for each acre of the said land herein devised, in case my said wife shall survive me, and the payment required herein shall be and remain a lien upon the said premises herein devised until the death of my said wife or its payment as herein provided."

"Fifth:" The will devises a 160 acre farm in Hancock County, to testator's son, William Jennings Anderson. "Provided, however," that said son pay to Mary Anderson, $3.00 per acre per year during her life, "which said sum shall be and remain a lien upon said premises during the natural life of my said wife or until the same is fully paid."

Said devises were accepted by the devisees and apparently said estate was seasonably closed.

Mary Anderson died in December, 1940. Under her will appellants received the residue of her estate.

In September 1942, appellants instituted an action in equity, alleging $7,680 was due Mary Anderson for the installments of the $480 annual charge or lien, created by the will of Andrew Anderson on the 160 acre farm willed by Andrew to William Jennings Anderson, for the sixteen years between the death of Andrew Anderson, in 1924, and the death of his widow, Mary Anderson, in 1940. Appellants prayed judgment in rem against said real estate, establishing and foreclosing the charge or lien thereon in said total amount with interest upon the annual installments, beginning October 20, 1924.

The petition alleged William was still the owner of the land and he was named as defendant but no personal judgment against him was prayed.

A like action was instituted by appellants involving the 280 acres received by Elmer H. Anderson under the will of Andrew Anderson, alleging the annual charge or lien thereon was $840, and totalled $13,440. Defendants were Elmer H. Anderson and an alleged holder of an easement on the land and a mortgagee. In each case a defendant moved to strike from the petition all claims alleged to have accrued more than five years prior to the commencement thereof, as affirmatively appearing to be barred by the statute of limitations. The trial court sustained the motions. Plaintiffs have appealed from the orders sustaining the motions and the appeals have been consolidated.

Appellees' motion to dismiss the appeals has been considered and is overruled.

Counsel for the respective parties agree that the will placed upon the devised real estate a charge or lien to secure payment to Mary Anderson of an annual legacy of $480 in one case and $840 in the other (See 28 R.C.L. 306-307), and that each devisee became personally liable for the amounts charged against his land. Both sides quote from 28 R.C.L. 307, as follows: "When a devisee accepts lands which have been charged with a legacy the general rule is that he becomes personally liable for the payment of the lagacy, which obligation may be enforced without resort to the land. The rule rests upon the reasonable principle, that he who takes a benefit under a will must take it subject to its conditions. The acceptance of the devise therefore imports a promise to pay the legacies."

In 69 C.J. 1215-1217 is a similar statement: "*** if a devisee accepts a devise charged with the payment of legacies, such as by a direction or on condition, that such legacies be paid by devisee, as a general rule he is personally liable for their payment in accordance with the terms of the will, as on a contract, ***. The attachment of personal liability upon the devisee by reason of his acceptance of the devise does not affect the lien of the charge on the land, or bar a proceeding against the land."

A charged legacy is in the nature of an ordinary debt which the devisee has promised to pay and the legatee may enforce payment by action at law against the devisee on such promise. Such legacy is an equitable charge upon the real estate. Therefore proceedings may be brought in equity to enforce payment. 28 R.C.L. 308-309.

We do not understand that either side disagrees with any of the foregoing propositions. Various decisions of this court are in accord therewith.

In Duden v. Duden, 191 Iowa 515, 182 N.W. 795, the will devised land to testator's daughter and required her to pay his widow $2 per acre cash each year. The decision holds this annuity is a charge and lien upon the land.

Security Savings Bank v. Williams, 188 Iowa 904, 909, 910, 176 N.W. 971, 974, states that the devisee is required to pay the legacies. "They are made his indebtedness, which he assumed in accepting under the will. *** There can be no doubt but that the legacies became a charge and lien upon the *** land ***."

Mohn v. Mohn, 148 Iowa 288, 126 N.W. 1127, states the devise simply creates a charge upon the land; the devisee elected to accept the devise, obligating himself to pay the charges.

In Huston v. Huston, 37 Iowa 668, an action at law against the devisee to enforce payment of a charge it was said his promise to pay was implied by the acceptance of the devise.

Henry v. Griffis, 89 Iowa 543, 56 N.W. 670, was an action against a purchaser from the devisee to cancel a conveyance and subject the devised real estate to a judgment against the devisee based in part upon an unpaid lagacy. It was held the will created a lien upon the devised real estate of which the transferee was bound to take notice.

Nehls v. Sauer, 119 Iowa 440, 442, 93 N.W. 346, was an action at law against the grantee in a deed which required him to pay the grantor $200 each year, January 1, during grantor's life. The decision states the annuity "is primarily a personal charge or liability upon the promisor, for which the real estate stands as security only."

I. Most authorities hold a provision, such as those here involved, creates an equitable charge or lien and not a trust. Generally speaking, a transfer which gives a beneficial interest in the property to the transferee and a mere security interest to the third person creates an equitable charge, while a transfer which gives a beneficial interest in the property to a third person and imposes upon the transferee the duty to deal with the property for the benefit of such third person, creates a trust. Restatement of the Law of Trusts, Section 10; Merchants' Nat. Bank v. Crist, 140 Iowa 308, 118 N.W. 394, 23 L.R.A.,N.S., 526, 132 Am.St.Rep. 267; Riddle v. Beattie, 77 Iowa 168, 41 N.W. 606. There is no contention by counsel on either side that the provisions here involved created trusts.

The remedies available to such a legatee are analogous to those he would have upon a debt secured by a mortgage on real estate. Upon failure of the devisee to pay the charged legacy when due, the legatee may enforce payment by action at law against the devisee personally upon his implied promise to pay, without resorting to the land. The legatee may also enforce payment from the charged property by action in equity. The right of the legatee is to payment of the sums due him. One available remedy for the enforcement of this right is against the person primarily liable to pay. Another remedy is against the charged property. We are satisfied such remedies are concurrent. The lien and the personal obligation are part of the same transaction which may be said to include the charging of the legacy on the real estate, testator's offer of said real estate to the devisee conditioned upon devisee's agreement to pay the charged legacy and the devisee's acceptance of the offer. Although technically the lien and the personal obligation do not attach at the same time and perhaps either could be created alone, where both are present they afford the legatee concurrent remedies for enforcing payment.

Although it is the rule in some jurisdictions that the statute of limitations does not apply eo nomine to suits in equity "in this State our statute, ex vigore suo, operates in both courts alike, and not in equity by the mere discretion or courtesy of the chancellor." Relf v. Eberly, 23 Iowa 467, 469, cited and followed in the District Tp. of Spencer v. District Tp. of Riverton et al., 62 Iowa 30, 17 N.W. 105; Dwight v. City of Des Moines, 174 Iowa 178, 187, 156 N.W. 336, 340. See, also, 34 Am.Jur. 54. Lawrence v. Melvin, 202 Iowa 866, 870, 211 N.W. 410, 413, states: "Except in certain familiar instances, the statute of limitations is applicable to actions in equity, as well as at law."

It has also been held that the statute of limitations applies to actions upon specialties. George v. Webster County, 211 Iowa 164, 233 N.W. 49.

Appellants cite Packer v. Overton, 200 Iowa...