Bennett v. Bowers

• Decision Date: 29 July 1947
• Docket Number: 47043.
• Citation: 28 N.W.2d 618,238 Iowa 702
• Parties: BENNETT v. BOWERS et al. (STATE BOARD OF SOCIAL WELFARE, Intervener).
• Court: Iowa Supreme Court

28 N.W.2d 618

238 Iowa 702

BENNETT v. BOWERS et al. (STATE BOARD OF SOCIAL WELFARE, Intervener).

No. 47043.

Supreme Court of Iowa

July 29, 1947

Claud M. Smith, pro se, and Loyal R. Martin, of Cherokee, for appellant.

Herrick & Ary, of Cherokee, for appellee.

T S. Herrick, Sp. Asst. Atty. Gen., and Archie Nelson, Co. Atty., of Cherokee, for intervenor-appellee.

MANTZ Justice.

The plaintiff, H. E. Bennett, brought suit to quiet title to a certain lot in New Cherokee, Iowa. Various defendant were named, all of whom, except Claud S. Smith, defaulted. The latter defended upon the grounds that he held a judgment on a one-third interest in said lot and claimed ownership thereby. Plaintiff claimed title through a tax deed issued by Cherokee County, Iowa, covering sale for taxes on said property for the years 1935, 1937, 1938 and 1939. Defendant claimed that the tax deed was void and of no effect. A petition of intervention was filed by the state Board of Social Welfare State of Iowa, wherein the claim made by Claud M. Smith was expressly denied. Said intervenor supported plaintiff's claim as pleaded.

The trial court found for plaintiff, sustaining the tax deed and title of plaintiff, and further found that Claud M. Smith had no title to the property. This appeal followed.

I. An examination of the brief and argument shows that appellant has not complied with Rule 344 of the Iowa Rules of Civil Procedure. Appellant, in stating the propositions relied upon, does not follow each with brief points and authorities as provided by said rules. In some propositions points and argument are commingled. This method of presentation has not been helpful in considering the matters set forth in this appeal.

As we understand appellant's claims they are three in number:

1. That appellant is the owner of an undivided one-third interest in and to the real estate involved by reason of a resulting or implied trust, and of the other two-thirds interest by reason of abandonment.

2. That the intervenor is barred and estopped on account of having conveyed its interest in the property by contract and deed to the property involved.

3. That the tax deed under which plaintiff claims is void.

Claud M. Smith further pleaded that the provisions of the Iowa Tax Sales Law as set forth in sections 446.15 and 446.19, Code of 1946, violate the State and Federal Constitution; also, that said statute violates Art. I., Sec. 6, of the Iowa Constitution. As there was no argument on this last claim we will not consider it.

II. Regarding the first claim made by appellant--that he is the owner of the property in question with rights superior to those of appellees--wherein he claims a one-third interest by reason of a certain judgment which he held against J. B. and Ella Bowers, originating on February 21, 1927: On September 15, 1939, Ella Bowers was the owner of the property involved. On that day by warranty deed she conveyed the same to her three sons, one of whom was Dale J. Bowers and as to him the deed contained the following provision: 'The undivided one third interest in said property hereby transferred to my son, Dale J. Bowers is hereby charged with the payment of one certain judgment rendered in the district court of Cherokee County, Iowa, on the 21st day of February, 1927, in favor of Claud M. Smith, and against this grantor and her deceased husband, J. D. Bowers, for the sum of $150 and costs, $85.35, 6% interest, and of record in judgment docket No. 30, at page 32, in the office of the clerk of the district court of said county, less whatever payments have been made on said judgment.' Said deed was acknowledged before Claud M. Smith.

The property was sold for taxes Cherokee County on December 2, 1940, and for unpaid taxes for 1935, 1937, 1938 and 1939 and a tax certificate was issued to Cherokee County and this was later assigned to the State Board of Social Welfare. The treasurer's deed was issued on July 26, 1943. The State Board of Social Welfare later sold the property by contract to the plaintiff. At that time the judgment in favor of Claud M. Smith was unsatisfied.

Strictly speaking, Claud M. Smith had no judgment lien when the deed was made by Ella Bowers to her three sons on September 15, 1939. So far as being a lien on real estate this judgment had expired in February, 1937. The deed in effect created an equitable lien against the one-third conveyed to Dale J. Bowers.

III. Appellant claims title to the other two-thirds of the property by way of abandonment. We see no merit in such claim. The record is silent as to the possession at the time of the tax deed. On July 26, 1943, at the time a tax deed was issued an affidavit was filed by the county auditor reciting that the notice of expiration was served upon the parties in possession. This fact tends to rebut appellant's claim that the property had been abandoned. There is no presumption that the property was abandoned. Abandonment is a question of fact. 1 C.J.S., Abandonment, § 8. Ray Coal Mining Co. v. Ross, 169 Iowa 210, 151 N.W. 63, 65.

In the cited case, this court (Gaynor, J.,) said: 'Abandonment involves an intent and purpose to surrender the right acquired, accompanied by acts indicating that purpose and intent. It is a question of fact, and not of law.' Citing 2 Washburn Real Property, 82.

Appellant raises the issue of abandonment by arguing that the interests of the title holders, the Bowers, had various liens thereon, that those were not paid and no attempt was made by them to redeem and that they made no appearance in the case. There is no other evidence in the case of any act, word or intent on their part, nor is there anything in the record to indicate in favor of whom, if anyone, they intended to relinquish their rights. We hold that such a showing falls far short of showing that the Bowers had abandoned the property.

IV. In pleading, appellant claims to own an undivided one-third interest by reason of the above quoted provision of the deed. In his answer he stated, 'that he be deemed to be the owner in fee simple of an undivided one-third interest in the real estate free and clear of all liens and encumbrances.' In an amendment to his answer the appellant stated: 'he be decreed to be the sole and only owner of the fee title to all of said property free and clear of all claims of ownership asserted by plaintiff.' On September 23, 1946, appellant filed in court a conditional offer to pay all lawful taxes due on the property and valid old age assistance claims, 'all in case the fee title to the property involved in the action is found to rest in this answering defendant * * *.' In argument, he asserts that he is the owner of the property involved.

The deed of Ella Bowers, wherein the interest of Dale J. Bowers is charged with a certain judgment in favor of appellant does not support appellant's claim of ownership. It shows a judgment lien, nothing more. To maintain his defense appellant must show that he is the owner of the property. McCash v. Penrod, 131 Iowa 631, 109 N.W. 180; Lemker v. Unknown Claimants, 201 Iowa 902, 208 N.W. 290. At most, the judgment mentioned in the Ella Bowers deed was a lien upon the interest of Dale J. Bowers.

The amount of this judgment was merely a lien on the interest of Dale J. Bowers, but appellant asserts ownership of the premises and by cross petition asks partition thereof. Appellant is not a party to the deed; his interest is simply a lienor as set forth in the contract between the grantor, Ella Bowers, and the grantee, Dale J. Bowers. But he claims that the deed created in him a resulting or implied trust, hence ownership. There was no evidence save the deed; no attempt to show such trust by other evidence. Appellant argues that a trust arose out of his judgment lien. We quote from Restatement of Trusts, Section 10. 'Ordinarily where property is transferred to another 'subject to the payment of' a certain sum to a third person, or 'paying' such a sum, an equitable charge and not a trust is created since the transferor does not thereby manifest an intention to impose a duty upon the transferee to deal with the property for the benefit of a third person.' See also, Anderson v. Anderson, 234 Iowa 277, 12 N.W.2d 571. We hold that the deed from Ella Bowers to her sons transferred title to them and that the share of Dale was charged with a lien. Such gave appellant no ownership sufficient to meet the requirements of a partition suit. Incorporated Town of Story City v. Hadley, 214 Iowa 132, 241 N.W. 649; Sec. 448.7, 1946 Code of Iowa.

In pleading, appellant made a conditional offer to pay taxes legally and lawfully due and all sums due the State Board of Social Welfare, and the full amount of the consideration which it has deeded or contracted to conveyed, in case the fee title to the property involved was found to rest in the answering defendant (appellant). The point is argued very briefly and in connection with another matter and we might properly disregard it. However, the offer was conditional, depending upon the happening of other things. It fails to comply with Section 448.7, Code of 1946. Assuming the point raised, still it is without merit.

V. Appellant further contends that the tax deed from Cherokee County, Iowa, under which appellees claim title is void, consequently no rights exist thereunder.

The property was sold for the taxes of 1935, 1937, 1938, and 1939, on December 2, 1940, under what was known as a scavenger sale. Cherokee County brought the premises for $80. A certificate of the tax sale was duly issued at that...