Byers v. Byers

• Decision Date: 06 March 1951
• Docket Number: No. 47792,47792
• Citation: 242 Iowa 391,46 N.W.2d 800
• Parties: BYERS et al. v. BYERS et al
• Court: Iowa Supreme Court

Page 800

46 N.W.2d 800

242 Iowa 391

BYERS et al. v. BYERS et al.

No. 47792.

Supreme Court of Iowa

March 6, 1951.

Hoegh & Meyer and W. W. Bullman, all of Chariton, for appellants.

A. V. Hass, of Chariton, for appellees.

BLISS, Justice.

Nathan N. Byers died intestate July 12, 1949, at the age of ninety-five years, leaving no widow, but survived by a son, the defendant, Lester A. Byers, and children of a deceased daughter, Mabel Wells, all of whom are defendants, and also survived by children and grandchildren of Clyde L. Byers, deceased, all of whom are either plaintiffs or intervenors. Clinton Byers, deceased, a son of Clyde L. Byers, is the father of the grandchildren. Martha J. Byers, wife of Nathan N. Byers, died March 24, 1942.

The suit went to trial upon the amended and substituted petition of plaintiffs, which pleading the intervenors adopted, the amended answer of the defendants, and the reply of plaintiffs and intervenors. Plaintiffs and intervenors alleged that: on the death of Nathan N. Byers he was the owner of the North Half of the Northeast Quarter of Section 18, Township 73 North, Range 20 West of the 5th P.M., except four acres conveyed therefrom to the State of Iowa for highway purposes; the names and relationship to the deceased of all his heirs, and the specific undivided interest of each in said land; the undivided interest therein of the defendant Lester A. Byers was one-third, although he claimed fee simple title to the said land by virtue of a warranty deed thereto naming him as grantee, and executed by Nathan N. Byers on December 17, 1943, and placed in escrow with his attorneys, Enos A. Anderson and Lucile M. Anderson, husband and wife, for delivery to the grantee, Lester A. Byers, on the death of Nathan N. Byers; when said deed was so delivered in escrow, Nathan N. Byers never relinquished control thereof, but executed and delivered to the escrow holders the following direction, over his signature, typewritten upon the envelope containing the deed, towit, 'December 17, 1943. The within deed of conveyance by Nathan N. Byers is hereby delivered to E. A. Anderson and Lucile M. Anderson, Attys. to hold in Escrow and to be delivered to Lester A. Byers, upon my death, unless sooner called for by me.' The petition further alleged that after the death of said E. A. Anderson and after the death of Nathan N. Byers, the said Lucile M. Anderson handed the deed to the defendant, Lester A. Byers, who accepted it after Lucile M. Anderson had materially altered the deed by typewriting into it, as an exception from the land described therein, a description of the portion conveyed for highway purposes; that after said alteration was made the deed was delivered by Lucile M. Anderson to Lester A. Byers, who had it recorded; and that said alteration and delivery were illegal, and the deed conveyed no title to the grantee named therein.

Defendants in their answer as amended admitted the relationship of all parties to the deceased were as alleged in the substituted and amended petition, and the execution and delivery of the deed in escrow and the written directions under which it was held, and admitted the delivery of the deed to Lester A. Byers. They further answered that the execution by Nathan N. Byers of the said deed of December 17, 1943, conveying the eighty acres to Lester A. Byers, and the delivery of the deed in escrow, was the result of a voluntary family settlement between Nathan N. Byers and certain of his heirs the beneficiaries of which were Mabel Wells, his daughter, Clyde L. Byers, his son, Clinton Byers, his grandson and the defendant Lester A. Byers, which settlement was made because of the alleged payment by Nathan N. Byers of certain promissory notes of Clyde L. Byers and Clinton Byers.

Defendants alleged that Lester A. Byers was the absolute owner of the land so deeded. For further answer defendants alleged that; after the death of E. A. Anderson on November 7, 1945, Nathan N. Byers modified the written escrow instructions, set out above, by 'repeatedly' stating to Lucile M. Anderson, the surviving holder of the escrow that he did not wish the deed returned to him but that he wished her to deliver it after his death, to Lester A. Byers; and that after Lester A. Byers, on July 28, 1949, had accepted and received said deed, 'Lucile Anderson, who was then his legal and business adviser', made the aforesaid alteration in the deed, and said defendant on the same day had the deed recorded. The prayer of the answer was that title to said land be quieted in Lester A. Byers.

(Note. The date November 7, 1945, alleged in the answer as the time of the modification of escrow instructions, in erroneous. It was on that date that E. A. Anderson died. The date of the alleged modification as shown by the testimony of Lucile M. Anderson was March, 1946.)

Lucile or L. M. Anderson had been named as a defendant in plaintiffs' amended and substituted petition. On April 20, 1950, the day before the trial started, she moved that she be dismissed as a party defendant because she neither claimed, nor had any interest, in the land, and that any possible cause of action against her would be for damages because of altering the deed, which injured to one, and any such action could not be joined in a partition suit. The court sustained the motion.

The land involved in this suit, the N 1/2 of the N.E. 1/4 of section 18, Twp. No. 73 North of Range No. 20, was acquired jointly in 1885 by Nathan N. Byers and Harvey L. Byers, and the latter conveyed an undivided interest therein to Nathan N. Byers in 1895. This eighty acres is referred to in the record as the 'home place'. Later Nathan N. Byers acquired the S. 1/2 of the N.W. 1/4 of section 17, Twp. 73, Range 20, which cornered with the 'home place', and also the S.W. 1/4 of the N.E. 1/4 of Section 17, and the N.W. 1/4 of the S.E. 1/4 of said section 17. These four forty-acre tracts, comprising 160 acres, formed an L shaped tract with three forties running east and west and one forty adjoining the most easterly forty on the south. This entire tract is referred to as the '160'. On or about August 11, 1945, Nathan N. Byers and Lester A. Byers jointly bought from the referee of the Martha J. Byers' (deceased wife of Nathan N. Byers) estate the N 1/2 of the S.W. 1/4 of section 23, Twp. 73, Range 21, except railroad right of way, for $6,800 of which $4,100 was paid in cash and the balance was financed through the Federal Land Bank of Omaha and the Land Bank Commissioner. It was located about two and one-half miles south and west of the 'home place'. Nathan and Lester each owned an undivided one-half interest in this seventy-five acres, at the time of Nathan's death. In the record it is referred to as the 'railroad eighty'.

Until his death on July 12, 1949, Nathan N. Byers lived on the 'home place', and operated it and the '160' by tenants. The 'railroad eighty' in section 23 was operated by himself and Lester A. Byers as a partnership. Nathan N. Byers had the use of the land in controversy from the time the deed thereto was placed in escrow until his death. The probate inventory of his estate shows the estimated value of the '160' at $3,200, and that of the half interest in the land in section 23 at $3,870. The personal property is valued at approximately $3,000 before deduction of debts and expenses. The land in controversy is listed in schedule IV as land conveyed to Lester A. Byers, in contemplation of death, and its value is put at $8,000.

I. We find no evidence which tends to establish the allegation of defendants' answer that the deed of December 17, 1943, which was placed in escrow, was executed as the result of, or in fulfillment of any settlement in the Nathan N. Byers family, or among his heirs, or between him and any of his heirs. There is no evidence whatsoever of any meeting of any kind between or among any of those persons, for such a settlement.

Lester A. Byers stayed with his father from April 19, 1949 until his death about three months later. After his father's death he told the administrator that his father's desk should be cleaned out, and he then took time to go through the papers and letters. The administrator went through some of them with him, and Lester went through the rest himself. Those which were not thought important were burned. None of the other heirs were present during any of the search. About a dozen promissory notes were produced by defendants at the trial. Most of them bore dates between February 19, 1901 and February 3, 1908. About half of them bore the signatures of C. L. Byers and N. N. Byers. There was nothing on the face of these notes, nor was there any evidence, as to whether one or both signers were primarily liable. Three notes bore only the signature of Clyde or C. L. Byers, one of which for $190, bearing date of Feb., 1901 was payable to N. N. Byers. The remainder of the notes were payable to banks. On the backs of several notes payments of principal and interest are shown. On one note was an endorsement of $90 by N. N. Byers. There was no indication, except one or two small indorsements, as to who paid these notes. To say that these notes executed thirty five and more years before the execution of the escrow deed had any connection therewith, or that they were a part of any family settlement would be the merest conjecture. There was a note signed by C. L. Byers and Ronald Byers payable to the Iowa State Savings Bank of Knoxville, bearing date of February 1st 1939, stamped paid by the bank, with several payments shown on the note, but there is nothing to indicate who paid any part of the note. By these notes the defendant, Lester A. Byers, contends by inference that the father gave the 'home place' to him because of advancements made to Clyde Byers and his son Clinton. But the father made no attempt to benefit Mabel Wells or her children by a conveyance of property such as he made to Lester. Nathan died...