Axtell v. Harbert

• Decision Date: 16 July 1964
• Docket Number: No. 51377,51377
• Citation: 256 Iowa 867,129 N.W.2d 637
• Parties: Dorothy E. AXTELL, Appellee, v. Walter HARBERT, Appellant, Donald E. Butcher, Intervenor-Appellant.
• Court: Iowa Supreme Court

Page 637

129 N.W.2d 637

256 Iowa 867

Dorothy E. AXTELL, Appellee, v. Walter HARBERT, Appellant Donald E. Butcher, Intervenor-Appellant.

No. 51377.

Supreme Court of Iowa.

July 16, 1964.

Irish & Skinner, Altoona, for defendant-appellant and intervenor-appellant.

Bray, McCoy & Faulkner, Oskaloosa, for plaintiff-appellee.

PETERSON, Justice.

Plaitiff sued defendant for rent on a certain 40 acre tract in Poweshiek County. However, the important issue in the case is a controversy between plaintiff and her brother Donald, intervenor, as to the ownership of the 40 acre tract. Trial court decided in favor of plaintiff. Intervenor has appealed.

I. Appellant, intervenor, raises two alleged errors. 1. That plaintiff failed to establish the essential elements of estoppel. 2. That facts are not present against intervenor which would constitute waiver.

II. Mr. W. C. Butcher died testate in Poweshiek County December 26, 1940. He was the owner at his death of a 320 acre improved farm. In the vicinity of this farm was a 40 acre tract which was owned by his wife Elizabeth Butcher. Mr. Butcher left the use of the 320 acre farm to his widow for life, with the remainder over in equal shares to his two children, Dorothy E. Axtell, plaintiff, and Donald, intervenor. Donald was the principal of a school at Redfield.

In the fall of 1949 his mother approached Donald relative to buying the 320 acre farm. She had previously discussed the matter with her daughter Dorothy. After some negotiation it was decided that deed would be executed to the farm by the mother and daughter. In consideration of Dorothy's one-half interest her brother Donald, intervenor, would execute and deliver to her a note for $18,000 at 4% interest, to be paid on or before March 1, 1970. Intervenor has already paid $11,500 and interest to date on the note. The transaction was consummated between the mother, daughter and son. However, Mr. C. W. Axtell, the husband of plaintiff, refused to sign the deed. Donald received the deed and took possession of the 320 acre farm. He rented the 40 acres from his mother and farmed the 360 acre tract as one unit.

On February 18, 1961, Elizabeth Butcher died testate. One item in the will of Mrs. Butcher provided:

'I now own the following described real estate situated in Poweshiek County, Iowa, to wit:

'The Northeast Quarter of the Southwest Quarter, Section 10, Township 78 N, Range 13, West of the 5th P.M. (The 40 acre tract in question)

'It is my Will, and I do hereby give, devise and bequeath said 40-acre tract to my daughter, Dorothy E. Axtell, upon the condition, however, that the husband of Dorothy E. Axtell, Charles W. Axtell, will execute a Quit Claim Deed to Donald E. Butcher, on the real estate conveyed to the said Donald E. Butcher by Dorothy E. Axtell, and in the event the said Charles W. Axtell does not execute said Quit Claim Deed to the said Donald E. Butcher, then and in that event, I do hereby give, devise and bequeath said 40-acre tract to my son Donald E. Butcher.'

After the death of his mother Donald was appointed executor of her estate.

Donald and Dorothy met, shortly after the death of Mrs. Butcher, at the office of Mr. Eichhorn, an attorney. He read Mrs. Butcher's will to them and they retained him as the attorney in the estate. In Mrs. Axtell's testimony she states she told her brother Donald on that occasion she would ask her husband to sign the deed.

Donald also testified he told his sister some months later 'if she'd get the deed signed we would proceed and close the estate up, and she said she would.'

Mr. Donald Butcher had Mr. Eichhorn prepare a quit claim deed and mail it to Mr. Light, a banker at Deep River. Mr. Light notified Mr. Axtell it was there for his signature. Donald told his sister Dorothy the deed had been prepared and sent to the bank. She said that was fine.

Shortly after Mrs. Butcher's will was filed for probate in February 1961, and after plaintiff told intervenor she would get the signature of her husband on the deed, Donald Told Dorothy to go ahead and take possession of the 40 acre tract of land. The land had been farmed by defendant, Walter Harbert, for some years, as a tenant of Donald, and plaintiff immediately contracted him to go ahead and farm the 40 acre tract for the year 1961. He placed part of it in corn and part in beans. At the end of the year he harvested the corn and the beans. Mrs. Axtell told him to sell the beans and bring her the proceeds of her one-half. He brought the check to her in the amount of $262.32. In the meantime plaintiff and her husband had erected a 1750 bushel corn crib at an expense of $1000 on the 40 acre tract. She had defendant place her one-half share of the corn in the corn crib and she sealed it. The record does not disclose the exact amount she received from such sealing.

The matter ran along through 1961, and early in 1962 Donald talked with his sister Dorothy again about the closing of the estate because the statutory probate period had expired. He filed his final report and gave a notice to Dorothy as to hearing. She did not appear nor file any objection. There was distributed to her one-half of the net cash receipts in the estate, amounting to $223.02.

Mr. Axtell, husband of plaintiff, never called at the bank to sign the quit claim deed which had been left there for his signature. On April 11, 1962, plaintiff started an equity action in the District Court of Poweshiek County against her brother Donald to set aside the deed she had signed on the 320 acre farm. Answer was duly filed by defendant. Before the case came to trial and on September 20, 1962, plaintiff filed a dismissal of the case.

After the case was started by plaintiff against her brother Donald to cancel the deed on the 320 acre farm in 1962, Donald notified Mr. Harbert, who had been farming the 40 acre tract in 1962, not to deliver any of the corn raised on the farm in that year to plaintiff. Mr. Harbert heeded Donald's notice and delivered the corn to the 320 acres owned by Donald.

On December 4, 1962, plaintiff filed an action in the office of the Clerk of the District Court of Poweshiek County against Walter Harbert praying that the ownership of said 40 acre tract be established in her and since defendant had failed to deliver the 1962 one-half of corn to her that she have judgment for same.

On December 11, 1962, Donald E. Butcher, her brother, filed a petition of intervention in the case praying that the ownership of the 40 acre tract of land be established in him, and that the landlord's share of corn grown on the 40 acres in 1962 be declared as his corn. Motions, answers and replies were filed in due course and after the case became at issue same was transferred under order of court to equity and was duly tried in the Poweshiek County District Court in September of 1963.

On October 7, 1963, the trial court filed findings of fact, conclusions of law, decree and judgment entry. The court entered judgment against defendant Walter Harbert in the amount of $1355.50, together with interest from November 14, 1962, and costs. The court also decided that plaintiff Dorothy E. Axtell was the absolute owner of the NW 1/4 of the SW 1/4 of Section 10, Township 78, Range 13, West of the 5th P.M. It is from this decree and judgment intervenor has appealed.

On September 12, 1963, Mr. C. W. Axtell, the husband of plaintiff, filed a notice and affidavit in the office of the County Recorder of Poweshiek County stating that he was the husband of Dorothy E. Butcher, Axtell, the daughter of W. C. Butcher, deceased, and stating that Mrs. Axtell had conveyed her interest in the 320 acre farm to intervenor, her brother, on November 10, 1949, and stating that affiant, C. W. Axtell, her husband, had never conveyed or joined in any conveyance of the real estate described in said deed and that he was filing a notice and affidavit in connection with his interest in accordance with the provisions of section 614.15, Code of Iowa 1962.

By reason of the closing of the Elizabeth Butcher estate, under which said 40 acre tract was left to intervenor under certain conditions, and by reason of the filing of said affidavit by C. W. Axtell, evidence was placed of record showing complete refusal on his part to execute quit claim deed to intervenor as to the 320 acre farm.

III. Appellant contends the facts in case at bar do not constitute estoppel. He contends the facts do not measure up to the elements established in many decisions as to estoppel. In both C.J.S. and in numerous cases of this court, four essential elements of estoppel are specifically listed:

A. False representation or concealment of material facts B. Lack of knowledge of the true facts on the part of the person to whom the misrepresentation or concealment is made,

C. Intent of the party making the representation that the party to whom it is made shall rely thereon,

D. Reliance on such fraudulent statement or concealment by the party to whom made resulting in his prejudice.

31 C.J.S. Estoppel § 61; McIntosh v. McIntosh, 211 Iowa 750, 234 N.W. 234; Stookesberry v. Burgher, 220 Iowa 916, 262 N.W. 820; Goodwin Tile & Brick Co. v. DeVries, 234 Iowa 566, 13 N.W.2d 310, 155 A.L.R. 346; In re MacVicar's Estate, 251 Iowa 1139, 104 N.W.2d 594; Kaltoft v. Nielsen, 252 Iowa 249, 106 N.W.2d 597.

The Stookesberry case is a leading case in the...