Bibler v. Bibler

• Decision Date: 22 November 1927
• Docket Number: 38528
• Citation: 216 N.W. 99,205 Iowa 639
• Parties: SAMUEL C. BIBLER et al., Appellees, v. DAVID DAWSON BIBLER et al., Appellants
• Court: Iowa Supreme Court

216 N.W. 99

205 Iowa 639

SAMUEL C. BIBLER et al., Appellees, v. DAVID DAWSON BIBLER et al., Appellants

No. 38528

Supreme Court of Iowa, Des Moines

November 22, 1927

REHEARING DENIED MARCH 10, 1928.

Appeal from Hamilton District Court.--G. D. THOMPSON, Judge.

Action for partition of real estate. The parties are the widow and surviving children of a decedent who died intestate. One son defended, and claims to be the owner of the premises in controversy, and asks that his title be quieted. The court decreed partition.

Reversed.

Henderson & Jones and A. L. Steele, for David Dawson Bibler and Mrs David Dawson Bibler, appellants.

Newel & Wallace and F. J. Lund, for Mr. and Mrs. Samuel C. Bibler appellees.

R. G. Remley, for Esther Bibler, appellee.

FAVILLE, J. EVANS, C. J., and KINDIG and WAGNER, JJ., concur, STEVENS, J., concurs in result.

OPINION

FAVILLE, J.

I.

Barrett Bibler and Florence Bibler were husband and wife. They were the parents of four children, the appellees Samuel, Ruth Z., and Barrett Fern, and the appellant David Dawson. Prior to the year 1911, Barrett Bibler had title to 280 acres of the land in controversy, and his wife, Florence, had title to 40 acres of the tract. There was certain real estate in the state of Kansas and a house belonging to one or the other of the parties. There was domestic trouble between Barrett and his wife, and a separation was agreed upon. The property rights were adjusted by contract. The Kansas property and an amount of money were turned over to Florence. The title to the forty was vested in Barrett, so that he owned the half section. On September 25, 1911, Barrett and Florence joined in a deed of said premises to David, which was recorded on October 14, 1911. On the same date on which said deed was executed and delivered to David, the latter executed and acknowledged a deed to said premises, with the name of the grantee left blank. This deed was, by agreement of Barrett and David, deposited in escrow with one Crosley, under a written statement signed by David, as follows:

"September 25th, 1911. To Varick C. Crosley: The deed this day deposited with you in escrow, made by David D. Bibler in blank, is to be held by you for the benefit of Barrett Bibler and his children, and should said Barrett Bibler at any time demand said deed of you, you are to write his name as grantee in said deed, or the names of his children, as he may direct, and in case of the death of said Barrett Bibler, you are to write the names of his surviving children and issue of any deceased children, as the case may be.

"David D. Bibler."

At or about the time of the execution of said instruments, in the autumn of 1911, David and his father moved on the premises, and lived together for a time. David was then unmarried, and was about 21 years of age. David has been in possession of said premises ever since. He was married in 1916, and has a family. Barrett moved about the country, living in different states, and spending part of his time with David on the farm. Barrett and Florence were divorced sometime prior to 1915.

On March 17, 1915, Barrett obtained the deed that had been deposited in escrow. He had his own name inserted as grantee, and took possession of the deed. He gave the depositary a proper receipt therefor. Said deed was never recorded. It is contended by David that, on or about January 11, 1916, he entered into a new arrangement with Barrett. His contention is that, at that time, the deed which Barrett had withdrawn from escrow was canceled by Barrett, by writing thereon "Canceled. Barrett Bibler," and that said deed was then surrendered to appellant. It is the contention of appellant that at said time, as a consideration for the cancellation and surrender of said deed, the appellant and said Barrett entered into a written contract, as follows:

"This agreement, made in duplicate this 11th day of January, A. D. 1916, between Barrett Bibler, father of David D. Bibler, and David D. Bibler, both of Stanhope, Hamilton County, Iowa, witnesseth:--

"That for and in consideration of the undertakings on the part of David D. Bibler and of the transfer by Barrett Bibler and Florence M. Bibler, then husband and wife, to David D. Bibler, of the following described real estate situated in Hamilton County, Iowa, to wit:--

"The south half of the southwest quarter of Section twenty (20); the northeast quarter of Section twenty-eight (28), and the east half of the northwest quarter of Section twenty-nine (29), all in Township eighty-seven (87) north, Range twenty-five (25) west of the 5th P. M., Iowa, containing 320 acres according to government survey.

"And in consideration of the said David D. Bibler taking said transfer to said real estate subject to a lease with Samuel C. Bibler and O. M. Mortenson, and also accepting said transfer subject to the drainage taxes as assessed against said real estate and also in consideration of the undertaking on the part of the said David D. Bibler to assume and pay any indebtedness now against the said real estate, thus fully relieving the said Barrett Bibler from any care in connection therewith, and in further consideration of the love and affection existing between father and son, the parties hereto, Barrett Bibler and David D. Bibler hereby enter into this mutual agreement and understanding.

"The said Barrett Bibler hereby acknowledges that all matters of account between himself and said David D. Bibler have been mutually settled and fully disposed of and that there is now no unsettled balances between them. That the warranty deed to said real estate executed on or about the 25th day of September, A. D. 1911, is of full force and effect conveying to said David D. Bibler all of the interest of the grantors therein and that all claims of Barrett Bibler in and to said real estate are merged in and form a part of this contract of agreement, this agreement being especially drawn for the purpose of clearly defining the relations of the parties hereto to said real estate, and to put beyond question the interest of the parties hereto in and to said real estate.

"The said David D. Bibler, in consideration of the said transfer as above set out, and because of the love and affection which he bears his said father, hereby agrees to provide a home for his said parent during his natural life. The father having the right under this contract to live with and as a member of the family of David D. Bibler, providing such home is suitable and congenial for the occupancy of said Barrett Bibler, and should such home not be suitable for said Barrett Bibler, taking into consideration his age and the state of his health then to provide suitable support and means for his said father to live elsewhere, leaving it entirely optional with his said father whether he shall make his home with said David D. Bibler or shall live elsewhere.

"It is now understood and agreed between the parties hereto that there is now a fixed indebtedness against said real estate aggregating more than eight thousand dollars, and that the health of Barrett Bibler is such that he cannot hope to make any headway towards clearing the same of such indebtedness, and that it is necessary that there should be a full, complete and definite understanding between the parties hereto in order that provisions should be made for the purpose of meeting such indebtedness as well as to provide for the future support of Barrett Bibler.

"The said Barrett Bibler further recognizes the fact that David D. Bibler is at this time unmarried, having no one to keep house for him and to help him make a home and to provide a suitable home for said Barrett Bibler; that said David D. Bibler would not care to marry, or that a suitable woman, perhaps, would not care to marry him until said David D. Bibler had made suitable provisions for a home and for such reasons, as well as those heretofore stated it is desired by the parties hereto that this contract should be entered into clearing up any matters in connection with said real estate and any personal property situated thereon and clearly defining the relations of the parties hereto to the same. It being the desire of the said Barrett Bibler to see his son, David D. Bibler, married and settled, and to have it clearly understood that all the property rights existing between them have been fully settled.

"In witness whereof we have hereto subscribed our names the day and year first above written.

"David D. Bibler,

"Barrett Bibler."

Barrett married the appellee Esther on November 29, 1916, at New Orleans. They did not live together continuously thereafter.

After the transaction of January, 1916, the appellant made extensive and permanent improvements on the farm, in the way of buildings, fencing, and tiling, amounting to approximately $ 22,000 in value. He also paid money to his father at various times, in the amount of approximately $ 5,000. He has placed mortgages on said premises that aggregate approximately $ 23,000. Barrett died in May, 1922.

The foregoing is a general outline of the case. Appellee Samuel contends that Barrett died seized of said real estate, and asks partition thereof. Appellee Esther claims her distributive share therein, and also title to a specific eighty under a claimed contract. Appellees Ruth Z. and Barrett Fern made no appearance, and are in default. Appellant claims to be the owner of the premises in fee.

There are allegations of fraud and of undue influence and of mental incompetency. Much of the evidence is from incompetent witnesses. Appellee Esther claimed a certain 80 acres of said premises under an alleged contract. She failed in her proof and the trial court denied her any relief on this claim. She had not appealed. We do not...