Collins v. Gregg

• Decision Date: 23 October 1899
• Citation: 80 N.W. 562,109 Iowa 506
• Parties: B. L. COLLINS et al., Appellants, v. W. H. GREGG
• Court: Iowa Supreme Court

80 N.W. 562

109 Iowa 506

B. L. COLLINS et al., Appellants, v. W. H. GREGG

Supreme Court of Iowa, Des Moines

October 23, 1899

Appeal from Tama District Court.--HON. G. W. BURNHAM, Judge.

THE petition is in two counts, the first of which sets forth a cause of action which is substantially as follows: Prior to December 14, 1893, plaintiffs were indebted to defendant in a considerable amount, which was evidenced in part by promissory notes and in part by book account. On that day for the purpose of securing payment of this indebtedness plaintiffs executed to defendant a warranty deed to the northeast one-quarter, section 31, township 85 north, range 14 west, in Tama county, and also a bill of sale of a large amount of personal property. They allege that they have made various payments upon said indebtedness; that they do not know how the account now stands, but they are able and willing to pay the amount due in order to obtain a reconveyance or release of said property; and they ask that an accounting be had, and the balance due be ascertained and fixed. The second count alleges that, by verbal agreement defendant was to, and did, furnish the money to enable plaintiffs to purchase from one McLain the west one-half of southeast one-quarter, section 30, township 85 north, range 14 west, in Tama county; that defendant was to, and did, take the title in his own name, the same to be conveyed to plaintiffs upon payment by them of the purchase price. It is averred that the purchase price has been fully paid, and a conveyance to them of this tract is sought. The answer puts in issue these various claims, and to the first count further states that the deed and bill of sale were made to secure future advances, also; that on or about September 1, 1894 plaintiffs and defendant had a full and true accounting together of all moneys advanced and indebtedness incurred since the making of the deed and bill of sale, and it was then and there ascertained that the amount thereof was one thousand three hundred and eighty dollars and fifty cents; that plaintiffs executed their promissory note to defendant for this amount; and that said note is now held by defendant, and is past due and wholly unpaid. The amount of some other indebtedness to defendant is set out, and its non-payment averred. It is asked that a time be fixed within which plaintiffs shall pay the same; that in default of such payment the right to a reconveyance of the mortgaged property be cut off, and a surrender of possession of the other real estate be decreed. To the second count it is further set up that defendant purchased the eighty acre tract from McLain, and thereafter it was verbally agreed that, if plaintiffs should within a reasonable time make a substantial payment of part of the purchase price to defendant, he would convey the land to plaintiffs, taking a mortgage thereon for the remainder of the sum paid out for the land, but if plaintiffs failed to make such payment of principal, they were to pay the interest on an eight hundred dollar mortgage which was then upon the land, the taxes, and interest at the rate of eight per cent. on the purchase money paid by defendant, and these sums were to be taken and applied as rent for said land; under this agreement plaintiffs took possession of the land, and have ever since held the same, receiving all rents and profits. It is averred that plaintiffs have never paid any part of the purchase money, nor have they paid the interest thereon, or the interest on the incumbrance, or the taxes; and it is prayed that plaintiffs be decreed to have no interest, right, or claim in or to the land. There was a reply filed on plaintiff's part, and an amendment to the reply; the latter being stricken from the files. Upon a hearing, there was a decree for defendant Plaintiffs appeal.

Affirmed.

E. E. Collins for appellants.

Endicott & Pratt and C. B. Bradshaw for appellee.

OPINION

WATERMAN, J.

I.

After the evidence was all in, plaintiffs filed an amendment to their reply, which on motion was stricken from the files. This pleading set up that the chattels transferred to defendant by the bill of sale had been by him negligently permitted to be wasted and lost, by not asserting his rights against certain attaching creditors, and that their value was three thousand dollars; and it was prayed that this amount be made a charge against defendant in plaintiff's favor. This, it strikes us, is not proper matter for a reply. Marder v. Wright, 70 Iowa 42, 29 N.W. 799; Jones v....