Brown v. Ward

• Decision Date: 11 February 1903
• Parties: AULONG BROWN, Appellee, v. C. L. WARD AND WARREN GLEASON, Appellants, AND C. L. WARD, Appellant, v. AULONG BROWN, Appellee
• Court: Iowa Supreme Court

93 N.W. 587

119 Iowa 604

AULONG BROWN, Appellee, v. C. L. WARD AND WARREN GLEASON, Appellants, AND C. L. WARD, Appellant, v. AULONG BROWN, Appellee

Supreme Court of Iowa, Des Moines

February 11, 1903

Appeal from Buena Vista District Court.--HON. A. D. BAILIE, Judge.

BOTH actions were begun for the partition of certain real estate and were consolidated for the purposes of trial. From the decree entered, Ward and Gleason appeal.--Modified and affirmed.

MODIFIED and AFFIRMED.

F. F Faville and Healy & Healy for appellants.

Carr & Parker and F. H. Helsell for appellee.

OPINION

WEAVER, J.

The history of this case, which is somewhat obscured by the variety and number of the pleadings filed, may be stated as follows: In the year 1888, Ward, being the owner of certain lots and gristmill in the town of Linn Grove, entered into an agreement to sell and convey a half interest therein to plaintiff. A part of the purchase price was paid, but, no conveyance having been made or delivered, plaintiff, in 1894, brought an action against Ward asking specific performance of the agreement, and for an accounting for rents. The district court found plaintiff entitled to a conveyance upon payment by her of a certain balance of the purchase price appearing to be yet due. On appeal to this court that decree was affirmed. Brown v. Ward, 110 Iowa 123, 81 N.W. 247. Thereafter, the provisions of said decree having been complied with, these proceedings were instituted for partition. To avoid confusion in reference to the consolidated cases, the word "plaintiff," as used in this opinion, will apply to Brown alone, and the word "defendants" to Ward and Gleason.

In the year 1890--two years after the date of the agreement between Ward and plaintiff for the sale of the property, and four years before the commencement of this action for its specific performance--Ward leased the property to the defendant Gleason and one Sitz. The lease was in writing, and, omitting some immaterial provisions, is in the following words: "This agreement, made and entered into this 4th day of June, A. D. 1890, witnesseth: That C. L. Ward, of Buena Vista county, state of Iowa does hereby lease and rent unto Warren Gleason, of Buena Vista county, Iowa the following described premises, to wit, the property known as the 'Linn Grove Mill Property,' together with the mill and the fixtures thereon and the privileges and appurtenances thereto belonging; to hold for a term of ten years, commencing on the 24th day of June, 1890; to be used for the purpose of milling. The said lessees agree to hire and rent the said premises and pay for the same as follows: Two hundred and fifty dollars a year after date, and two hundred and fifty dollars annually thereafter during the continuance of this lease; and as a further consideration for the use of said property the said lessees agree to repair said mill, and put the same in good condition for manufacturing flour and feed of the best quality, within one year of date hereof, and to keep the dam and fixtures in good condition, and to keep the said mill running during a reasonable portion of the time for the accommodation of the public. The said lessees further covenant with the said lessor that, * * * should they fail to perform any act agreed to be performed, or if at any time they shall cause or suffer any loss to any of the buildings or other property belonging to the said lessor, through negligence or by their failing to keep the same in good order, or by their failing to do their work in a good and workmanlike manner, then they authorize the said lessor, at his option, to take possession of the above-described property, and declare this lease at an end, * * * and that they will surrender peaceable possession of the said premises in as good condition as the same are now, or may be at any time placed by said lessor, the usual wear and decay alone excepted. * * * It is also agreed that, should owner or lessor of said premises herein described sell or dispose of same prior to the expiration of this lease, the lessees will surrender and release all their right, title, and interest acquired under this instrument upon sixty days' notice and the payment to them, their heirs or legal representatives, the true value of any machinery or improvements then being upon said premises belonging to them, or with the privilege to remove the same therefrom."

At the date of this lease the mill building was in a worn and dilapidated condition, and the machinery and fixtures of an antiquated pattern. Taking possession under their lease Gleason and Sitz proceeded to put the mill in repair, and placed therein new machinery to a value of $ 3,000 to $ 4,000. A year or two later Sitz sold his interest in the property to Gleason, who continued therein until near the expiration of the term of the lease and after the commencement of the partition proceedings. Plaintiff made Gleason a defendant in said proceedings, alleging that the machinery and improvements placed upon the premises by the...