ROBERTS
Judge.
January 17
1938, plaintiff recovered a judgment against defendant John
W. Steele for $12,505.18 and costs. December 30, 1942
plaintiff took out execution which was wholly unsatisfied.
January 8
1944, plaintiff brought this action seeking an adjudication
that he is the holder of a judgment lien against an undivided
one-half interest in certain real property. The trial court
held that the evidence failed to establish such claim and
entered judgment denying the relief sought. Plaintiff has
appealed.
Defendant
John W. Steele alleged in his answer that he has no interest
in the land described in the complaint except as trustee for
his two daughters. He claimed this interest by virtue of a
contract wherein Ella Steele, his aunt, agreed to convey the
premises. The contract reads as follows:
'This agreement made this 8th day of April, 1936, between
Ella Steele, of the City of Sioux City, Woodbury County,
Iowa, Party of the First Part, and Sarah Steele and John W.
Steele of the County of Clay in the State of South Dakota,
Parties of the Second Part.
'Witnesseth:
The Party of the First Part agrees to sell unto the Parties
of the Second Part the following described real estate
situated in the County of Clay, in the State of South Dakota,
to-wit:
'The West
Half and the West Half of the East Half of Section Thirty
(30), in Township Ninety-three (93), North of Range Fifty-two
(52), Containing 450.05 acres more or less, For the sum of
Five Thousand Six Hundred Fifty-two ($5,652.00) Dollars, and
the said Parties of the Second Part agree to purchase said
real estate from the First Party and to pay to the said First
Party, her heirs, assigns or legal representatives at the
City of Sioux City, Iowa, the said sum as purchase price
therefor in the manner following, to-wit:
'The sum
of $332.50 on the first day of February, 1937, the sum of
$332.50 on the first day of August, 1937, and a like sum on
the first days of February and August of each succeeding year
thereafter until the full principal sum aforesaid shall have
been fully paid. No interest shall be paid on the aforesaid
semi-annual installments until maturity, but each of said
installments shall bear interest at the rate of six per cent
per annum after maturity.
'The said
Party of the First Part, on receiving the said principal, and
interest on the said installments after maturity thereof, if
any such interest shall have accrued, agrees that she will
execute and deliver to said Parties of the Second Part, a
Warranty Deed conveying to them the said premises free of all
encumbrances, except taxes and special assessments payable in
1935 and thereafter, and except for liens and encumbrances
created or imposed against said premises by Second Parties,
either prior or subsequent to the date of this Contract. And
in furtherance hereof the said First Party has this day
executed and delivered in escrow to C. M. Stilwill, Attorney,
at Sioux City, Iowa, a Warranty Deed of said premises, as
herein provided, and this Agreement shall be
his authority to deliver the said deed to Second Parties,
their respective heirs or legal representatives, on the
receipt of evidence satisfactory to him showing the full
payment of the purchase price of the said premises, as herein
provided, and on the full and faithful performance of all of
the provisions of this contract on the part of Second Parties
to be kept and performed.
'Said
Parties of the Second Part hereby agree that all improvements
now upon or hereafter placed upon said premises shall remain
thereon and not be destroyed until full payment is made under
this Contract, and agree also to pay all taxes and
assessments that may become a lien on said property before
the same become delinquent. In case Second Parties fail to
make the payments aforesaid, or any part thereof, promptly
when due, or fail to pay the taxes and assessments, or any
part thereof, before they become delinquent, or fail to
perform any of the agreements herein made or required, and
six months shall have elapsed after any such failure or
delinquency, time being of the essence hereof, then in any
such case the Party of the First Part shall have the right at
her option to declare the entire balance of said purchase
price with interest to be due and payable, and to cancel and
forfeit the interests of Second Parties therein in the manner
provided by law, and in such case Second Parties shall have
no right for reclamation or compensation for money or
property paid or improvements made, but such payments or
improvements, if any, shall be retained by First Party as
compensation for the use of said property or as liquidated
damages for the breach of this contract, and if after such
cancellation Second Parties shall be in possession of said
real estate they shall be treated as tenants holding over
after the expiration of a lease. First Party, in the event of
default, shall further have the right to bring an action for
the specific performance of this Contract, or may proceed in
equity to foreclose the same.
'Neither
the extension of the time of payment by First Party of any
sum or sums of money to be paid by Second Parties, as above
provided, nor any waiver by First Party of her
right to declare this Contract forfeited by reason of any
breach thereof by Second Parties, shall in any manner affect
the right of First Party to declare this Contract forfeited
because of the failure of Second Parties to promptly make any
payment subsequently maturing, and no extension of time shall
be valid unless evidenced by a duly signed instrument. First
Party at her option may pay taxes, assessments, or any liens
created or suffered against the premises after the same
become delinquent and any sums so paid shall bear interest at
eight per cent from date of payment and this Contract shall
be security for the same. Second Parties further agree that
so long as this Contract shall remain in force they will in
all respects properly till and farm the said lands, keep the
buildings in good state of repair and suffer no waste to be
committed. They shall, while this Contract remains in force,
continue in the possession of said premises and will not
lease or sublet the same, or any part thereof, nor sell,
assign, or transfer their respective interests in this
Contract without the consent in writing of said Party of the
First Part.
'It is
especially understood and agreed that the interest accruing
to the said John W. Steele by virtue of this Agreement shall
be and is in trust for his minor daughters, Sarah Ella
Marcine Steele and Mary Ruth Steele, and that except for the
payment or advancement by him of the said minors'
proportionate share of the installments of purchase price
hereafter to be paid, including taxes, improvements, or other
upkeep of the premises over and above the share of said
minors in the rents accruing therefrom, the said John W.
Steele shall have no beneficial interest in the said real
property or in any part thereof whatsoever by virtue hereof
or otherwise. For the convenience of said minor daughters he
shall hold the legal title to their undivided half interest
in said real property when this Contract shall have been
fully performed and deed shall have been executed as herein
provided, but as soon as the younger daughter shall have
attained the age of twenty-one years, he shall convey the
full title unto them, and they shall be liable to him only
for such portions of the purchase price, including taxes or
other necessary repairs or upkeep as he may have paid or advanced in their behalf, after having charged
himself with the reasonable rental for the use and occupancy
of said premises.
'This
Agreement shall bind the respective heirs and legal...
