Bodell v. Nehls

• Citation: 85 Iowa 164,52 N.W. 123
• Parties: BODELL v. NEHLS.
• Decision Date: 16 May 1892
• Court: Iowa Supreme Court

85 Iowa 164

52 N.W. 123

BODELL

v.NEHLS.

Supreme Court of Iowa.

May 16, 1892.

Appeal from district court, Buchanan county; J. J. NEY, Judge.

Action to recover an amount alleged to be due on account of a partition fence, commenced in justice's court. A demurrer to the petition having been sustained, proceedings in error were instituted, which resulted in the overruling of the demurrer by the district court. From that ruling, defendant appeals.E. E. Hasner, for appellant.

Warren Chase and H. W. Holman, for appellee.

ROBINSON, C. J.

The questions we are required to determine are presented by means of a certificate of the district judge. From the statements contained in the certificate, it appears that the petition states the following facts: Defendant became the owner of the E. 1/2 of the N. W. 1/4 of section 33, in township 88 N., of range 7 W., in the spring of the year 1889. Previous to that time, Charles Cray, the assignor of plaintiff, had built and owned a fence between the east and the west halves of the quarter section described. The tract of which defendant became the owner had been uninclosed prior to the time he purchased it, but after that time he inclosed it, joined his fence to that of Cray, and used it to inclose his land during the season of 1889. In August of that year, defendant and the assignor of plaintiff entered into an oral agreement by which one half of the fence erected by Cray, as stated, was sold to defendant for its reasonable value, payment therefor to be made by October. The defendant demurred to the petition on the ground that the cause of action alleged related to a transfer of an interest in land, which is not in writing, and is therefore within the statute of frauds. That statute provides that no evidence of contracts for the creation or transfer of any interest in lands, except leases for a term not exceeding one year, is competent, unless it be in writing and signed by the party charged, or by his lawfully authorized agent. Code, §§ 3663, 3664. It is insisted that the fence in question had become a part of the land on which it was constructed, and that in law it must be treated as land. This may be conceded, for the purposes of this appeal, although the character of the fence is not shown. It is further insisted that, as defendant took possession of his land before the agreement in question was made, he must also have taken possession of the fence at the same time; therefore that he did not take and hold possession of it under and by virtue of the agreement, as required by section 3665 of the Code, in order to take the case out of the statute. The obligation of the respective owners of the adjoining tracts of inclosed...