Bull v. Weisbrod

• Decision Date: 27 January 1919
• Docket Number: No. 32406.,32406.
• Citation: 170 N.W. 536,185 Iowa 318
• Parties: BULL v. WEISBROD.
• Court: Iowa Supreme Court

185 Iowa 318

170 N.W. 536

BULL

v.WEISBROD.

No. 32406.

Supreme Court of Iowa.

Jan. 27, 1919.

Appeal from District Court, Union County; Homer A. Fuller, Judge.

Action to quiet title. Opinion states the facts. Decree for the defendant. Plaintiff appeals. Affirmed.D. Davenport and Jas. G. Bull, both of Creston, for appellant.

Hunn & Jones, of Des Moines, and P. C. Winter, of Creston, for appellee.

GAYNOR, J.

This action was brought to quiet title to certain lots in the city of Creston, Iowa. Plaintiff claims to be the absolute and unqualified owner of the lots and is in possession.

The defense interposed is that on the 2d day of April, 1912, the plaintiff sold the lots to Ray B. and Doris Weisbrod, husband and wife, and, at the time of the sale, executed and delivered to them a contract, in writing, by the terms of which he agreed to sell to the Weisbrods all his right, title, and interest in and to the lots, on the performance of certain agreements on their part as follows: They to pay for the lots the sum of $1,100, $10 on the 20th day of April, 1912, and $10 on the 20th day of each and every succeeding month thereafter until the whole amount, with interest at 6 per cent. per annum on unpaid amounts (the interest to run and be paid by stated monthly payments) was fully paid. The Weisbrods to pay the taxes. The contract then provided:

“But if such sums of money, interest and taxes are paid promptly at the time aforesaid, the plaintiff will execute and deliver to them a warranty deed of said premises as above agreed.”

On the 27th day of September, 1915, this contract was assigned to this defendant by the Weisbrods, and this action is brought against him as one claiming some interest under the contract, by virtue of this assignment.

There is very little dispute in the evidence. The only question here is the legal rights of the parties under the facts.

Upon the execution of the contract, the Weisbrods took possession of the property, and made payments in accordance with the contract. They subsequently moved to the state of Colorado. The husband went first, and the wife followed later.

Defendant is related to Mrs. Weisbrod. After the Weisbrods went to Colorado, defendant undertook to pay to the plaintiff all sums claimed by plaintiff to be due upon the contract. We may assume these payments were made by him for the Weisbrods.

On July 17, 1915, defendant wrote to the plaintiff, inclosing a check for $10 to apply on the contract, and in the letter accompanying the check asked him if there were any delinquent payments. The plaintiff received this check, cashed it, and in reply advised him that there was $40 due on payments, and $85.28 on taxes and interest, and that he thought the Weisbrods had no notion of returning, and he did not want to carry them any longer. Defendant replied to this letter, and inclosed a check for $40, and asked whether he should send the taxes to the treasurer or to the plaintiff. Plaintiff replied substantially as follows:

“July 21, 1915.

L. Weisbrod, Des Moines, Iowa: Your favor at hand inclosing forty dollars to be applied on contract. I have paid the taxes in order to keep the premises from tax sale. So you will send the taxes to me. The amount includes the taxes for this year, due Jan. 1, 1915. This covers only the taxes for 1914. The next taxes due will be Jan. 1, 1916, for the taxes of 1915. Weisbrod has paid no taxes at all since they went on the place in April, 1912. They have been in the place forty months, and have paid for thirty-six months. Your payment of the forty dollars just at hand pays for the forty months. The taxes and interest now due me is $85.28.”

On the 23d of July, defendant remitted to the plaintiff the $85.28 due for taxes and interest as stated in the preceding letter. On the 24th of July, the plaintiff returned to the defendant a receipt in the following words:

“Received of L. Weisbrod, Des Moines, Iowa, eighty-five and 28/100 dollars, taxes, interest and penalty on lots 3, 4, 5 and 6 in block One, Levy's First addition to Creston, Iowa, for and on behalf of Ray B. Weisbrod. This is in full of taxes, interest and penalty to date on taxes.”

Thereafter some controversy arose as to whether the $40 remitted by the defendant to plaintiff did not overpay the amount due. The thought of the defendant was that in paying the $40 he had overpaid plaintiff. To this controversy the plaintiff replied:

“If you will count the amount of the payments from the first up to the time I wrote you, you will find they had paid $360.00, or thirty-six payments. If you will count the time you will find it to be forty months.”

Thereupon the defendant sent plaintiff by letter a list of payments as they appeared on the contract. Thereupon the plaintiff wrote defendant:

“I think there is a further credit of five dollars which I failed to count. That will leave only five dollars to pay this month (August). So you will see I am right except the error of the five dollars in the twenty-five dollar payment.”

Thereupon, on August 21, 1915, the defendant remitted to plaintiff the $5 in a letter, in which he said:

“Inclosed five dollars for balance payment on this month and oblige.”

This check was received and cashed by plaintiff.

On September 17th, defendant addressed another letter to the plaintiff, inclosing a check for $10 to be applied on the contract. This check was returned to defendant in a letter reading as follows:

“Please find inclosed check you sent me for ten dollars. Mrs. Weisbrod with her children has left the premises and gone to her husband in Idaho. I have taken possession and am having the premises fixed up. They had pretty nearly ruined them. They have paid no interest at all, just ten dollars per month rent. It will take at least a hundred dollars to put the premises in living order. Ray left some months ago. She has now followed. I tried to help Ray and also the wife, but they seem to be an indolent set and Ray a dissipated fellow so that he lost his place on the railroad. I hope he will do well in the country. I don't know his address.”

To this defendant replied:

“Will you please let me know by whose permission you have taken possession and are repairing the property? You state they have paid no interest. On July 17th, I wrote you in regard to back payments and taxes. In your letter of July 19th you state he is behind in payments on contract, forty dollars. Taxes and interest, $85.28, both of which I paid. I would like to have the original tax receipts, also the amount of interest you claim they owed.”

Defendant replied:

“ ‘Taxes and interest’ refer to the interest on the taxes, though I put none on. There is about $175 interest only. The property has been damaged. It will take $100 to repair it. They have paid $420 on the property as rent leaving a balance of principal $680; of interest $175.”

To which the defendant replied:

“The contract which you made with the Weisbrods was assigned to me some time ago. Since then these parties have made a written assignment, and transfer of the contract to me and have also quitclaimed their interest in the property. This assignment and quitclaim has been forwarded to the recorder. There is no more than one month due and I sent you my check for that.”

Defendant in his letter said:

“After receiving the check which I sent you to cover the amount that you said was due, you now claim there is interest on the deferred payments still due. In this connection I want to call your attention to the contract which specifically provides that the monthly payment includes the interest.”

To this letter defendant replied:

“The contract is not assignable. A man owning real estate has the right to choose with whom he will contract. I have Mrs. Weisbrod's note for ten dollars with a credit of $3.35. I gave them personal notice some time ago, when they were in default, and had it duly served by a constable of a forfeiture of their rights under the contract. After notice had been served they came to me with tears in their voice and I rented the place to them from month to month as long as they would continue to pay rent and keep the premises in repair, and if they did not default in the payments and would keep the place in good repair and continue until the property was paid for, I would make them a deed. They have failed to keep the house in repair. They let it go to ruin.”

Thereupon the plaintiff, in a letter to the defendant, inclosed a quitclaim deed and $1.25, with a request that it be executed by the defendant and returned to him at once.

This action was commenced on the 18th of January, 1916. Defendant has tendered to the plaintiff all the money due upon the contract. That is for September, October, November, and December, 1915. These tenders were made by check. The money was in the bank on which the checks were drawn. This was the manner in which payments had been tendered and accepted before. No objection was urged to the tender on the ground that it was a check. Plaintiff upon this point testifies:

“I could have got the check cashed, but defendant had no interest in the property so I would not accept it. I owned the property then entirely. I returned the check for this reason, and this reason alone: That he had no interest in the property at all; that I owned it then entirely; that they had forfeited it; they had abandoned it; I had taken possession, and there was an agreement between Ray Weisbrod and his wife and myself respecting the abandonment and cancellation of this contract.”

[1] The record discloses no action taken to forfeit the contract such as contemplated by section 4299 of the Code of 1897, which provides:

“Any contract hereafter made for the sale of real estate * * * which provides for the forfeiture of vendee's rights therein upon the happening of certain conditions, shall not be forfeited or canceled unless, thirty days before a declaration of forfeiture is made, a written notice be served on the vendee or assignee,...