Brundage v. Cheneworth

• Decision Date: 09 February 1897
• Citation: 101 Iowa 256,70 N.W. 211
• Parties: BRUNDAGE v. CHENEWORTH ET AL.
• Court: Iowa Supreme Court

101 Iowa 256

70 N.W. 211

BRUNDAGE

v.CHENEWORTH ET AL.

Supreme Court of Iowa.

Feb. 9, 1897.

Appeal from district court, Sioux county; Scott M. Ladd, Judge.

This is an action in the nature of a creditors' bill to set aside an alleged fraudulent conveyance, and subject certain real estate to the payment of a judgment obtained by plaintiff against one Solomon Percey.The judgment was rendered in April, 1894.In 1878, Solomon Percey, the judgment defendant, it is alleged, was indebted and insolvent; that he had ever since been insolvent; that he conveyed the lands in controversy to his wife, “with the intent of hindering, delaying, and defrauding his creditors.”Thereafter the wife died, and the husband executed a deed to the defendantLionel Percey, conveying an undivided one-third interest in said land, which deed it is alleged was signed and placed of record for the sole purpose of hindering, delaying, and defrauding the creditors of the grantor.The other defendants are either heirs of Solomon Percey, now deceased, or holders of alleged liens upon the land.A demurrer was sustained to the petition.An amendment was filed, making other averments, which amendment was, on motion, stricken out, as being merely cumulative.Plaintiff electing to stand upon his petition, judgment was rendered against him for costs, and he appeals.Reversed.Hatley & Irwin, for appellant.

Palmer & Van Dyke, for appellees.

KINNE, C. J.

1.Appellees insist that this appeal must be dismissed because no service of notice of appeal has been made upon the administratrix of Solomon Percey, nor upon the minor Lionel D. Percey.It appears from the record that Solomon Percey had died prior to September 13, 1894, and that on said date Cheneworth, his administrator, was substituted as a defendant.The notice of appeal was served October 7, 1895.In the abstract it is alleged to have been served upon the defendants, and upon the clerk, as by statute provided.In the additional abstract of appellees the notice is set out, from which it does not appear that any notice of appeal was served upon Cheneworth, as administrator or otherwise, either personally or upon his attorneys; nor does it appear therein that a notice of appeal was served upon Cheneworth as guardian ad litem for Lionel Percey, who is shown to have been a minor, and Cheneworth is shown to have been his guardian.There is nothing in the record indicating the age of said minor, but the allegation is made in the abstract of appellees that he was duly served with a notice of appeal.If the minor was over 14 years of age, service on him would be sufficient.Code, § 2614.As the abstract avers legal service on all of the defendants, and as the minor is named as a defendant in the notice set out in the additional abstract, and as it is therein said that the notice of appeal was duly served, we think we should hold that proper service is shown to have been made in order to give this court jurisdiction as to said minor and his guardian.As we have indicated, the abstract alleges in a general way that the appeal was perfected by serving upon the defendants and the clerk a notice of appeal as by statute provided.This would, in the absence of anything from appellee, be a sufficient averment of service to give this court jurisdiction.The appellees, while not in express terms denying the correctness of this averment, file an additional abstract “for amendment to abstract of record,” and set out the notice which they claim was in fact served.The name of the administrator Cheneworth does not appear therein, and we think it must be held that there is nothing to show service upon him.It appears that Cheneworth, by agreement of parties, as guardian and as administrator, was authorized to lease the land upon terms agreed upon, and to produce the proceeds arising therefrom in court.He was also authorized to pay taxes.Was his interest as administrator such as to require him to be made a party to this appeal?The heirs of Solomon Percey are properly served with notice of an appeal.Under our statute and decisions, the administrator may not take possession of the real estate left by the decedent, except when there is no heir or devisee present and competent to take possession, in which case he may take possession, and receive the rents and profits, and do all other acts which may be for the benefit of those entitled to the benefit of the estate.Code, § 2402.It does not appear from this record whether such heirs were present or competent to take possession of the real estate.Unless it be necessary to sell the real estate to pay debts of the deceased, the administrator is not interested in it, as it descends to the heirs at law.Gray v. Myers, 45 Iowa, 158.If the rights of the parties to this appeal may be determined without affecting the interests of Cheneworth as administrator, then it was not necessary to serve him with notice of appeal.Payne v. Raubinek, 82 Iowa, 587, 48 N. W. 995.The failure of a plaintiffappellant to serve notice of appeal upon all of the defendants is not jurisdictional if this court can determine and dispose of the questions presented in the absence of such party, and without detriment to his interests.As, for aught that appears, the administrator has no such interest as can be adversely affected by any action of this court, he is not a necessary party to this appeal.

2.It is said that the court erred in striking from the files the amendment to the petition.The amendment charged that the conveyance from Solomon Percey to his wife was made upon the express agreement that the grantor was to be and remain the actual owner of the entire beneficial interest in the real estate so conveyed, and that his wife was to hold the property in trust for him.If it should be conceded that this was but a repetition of the allegations of the original petition, or that such allegations were merely cumulative, still the same cannot be said as to the allegations of said amendment in so far as it relates to the title of Lionel Percey.The original petition contained no averments to the effect that said Lionel was to hold the title to the land conveyed to him in trust for his father.The amendment did contain such averments, and hence, so far at least, the amendment was not open to the objection made in the motion to strike, that it was cumulative.The facts pleaded as to the holding of the land by the wife, and by Lionel, in trust for the grantor, in connection with the other facts stated, constituted, as we shall hereafter see, a good cause of action, and the motion should have been overruled.

3.The original petition was demurred to, on the general equitable ground that the facts stated did not entitle the plaintiff to the relief demanded.The demurrer was sustained, and error is assigned upon said ruling.The petition did set forth a good cause of action as to the land, the title to which was in the wife.If she held it in trust for the husband, the grantor, as was alleged, and he remained the real owner, then his creditors, whether existing or subsequent, were entitled to have said conveyance set aside, and to have the land subjected to the payment of their...