Copper v. Iowa Trust & Sav. Bank

• Decision Date: 17 November 1910
• Citation: 128 N.W. 373,149 Iowa 336
• Court: Iowa Supreme Court
• Parties: COPPER v. IOWA TRUST & SAVINGS BANK ET AL.

149 Iowa 336

128 N.W. 373

COPPER

v.IOWA TRUST & SAVINGS BANK ET AL.

Supreme Court of Iowa.

Nov. 17, 1910.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Suit in equity to set aside a sheriff's sale and deed. There was a decree for plaintiff. The defendant Elizabeth Hauge has appealed. Affirmed.Dudley & Coffin and Ole O. Roe, for appellant.

Thomas J. Guthrie, for appellee Williamson.

Read & Read, for appellee Copper.

Stewart & Hextell, for appellee Iowa Trust & Savings Bank.

EVANS, J.

The plaintiff is the wife of C. J. Copper, who held the legal title to a farm of 140 acres situated in Polk county. In 1907 the Iowa Trust & Savings Bank obtained a judgment against Copper for $68 on a promissory note. In January, 1908, execution issued under such judgment, and was levied upon the farm in question. On February 17, 1908, the farm was sold at execution sale en masse to the execution plaintiff for $102.60, being the amount of the judgment and costs. The farm in question was incumbered by a mortgage for $3,500, with some accrued interest, and past-due taxes, and its fair market value was somewhere between $8,500 and $12,600. No redemption having been made from the execution sale, a sheriff's deed was issued at the expiration of the year to the defendant Elizabeth Hauge as assignee of the execution plaintiff. The defendant Elizabeth Hauge is the wife of A. O. Hauge, the cashier of the Iowa Trust & Savings Bank, and the person who bid in the property for the execution plaintiff. The plaintiff claims to be the equitable owner of the farm in question, and claims that her husband held only the legal title in resulting trust for her. She alleged in her petition that she knew nothing of the sheriff's sale until shortly after the issue of the sheriff's deed, and that she knew nothing until then of any judgment or indebtedness owing by her husband to the execution plaintiff. She asked that the sheriff's sale be set aside on various grounds, which will be hereinafter noticed. She offered to do full equity and offered to pay the amount of the bid at sheriff's sale with all interest and costs and other disbursements. The defendant Hauge answered, denying, generally, any equity in favor of the plaintiff, and she stands here upon her statutory rights under the sheriff's deed, and claims title thereunder. The trial court found that the plaintiff was the equitable owner of the premises, and that her husband held only the legal title in resulting trust for her. We feel constrained to sustain this finding upon the record before us.

The plaintiff and her husband were married in 1884, at which time neither of them had any property. Two years later the plaintiff acquired the title to 60 acres of land as one of the beneficiaries of her deceased father's estate. About 1894 this land was sold, and the land now in question was purchased with the proceeds thereof; the title being taken in the name of the husband as already indicated. To this extent the testimony is undisputed and conclusive. That the presumption of resulting trust arose in plaintiff's favor from such a state of facts is well settled by authorities. Cotton v. Wood, 25 Iowa, 43;Lindley v. Martindale, 78 Iowa, 379, 43 N. W. 233;Seeberger v. Campbell, 88 Iowa, 63, 55 N. W. 20;Culp v. Price, 107 Iowa, 133, 77 N. W. 848;Smith v. Smith, 132 Iowa, 700, 109 N. W. 194, 119 Am. St. Rep. 581. The defendant contends that the evidence in this case overcomes such presumption, and shows a gift of the land by the wife to the husband. There is no direct evidence to that effect. In order to find such gift as proved, we should have to do so by a mere inference from the fact that no well-defined purpose or reason is shown for the taking of the title in the name of the husband. We do not overlook the fact that a claim of this kind might easily be established as against an execution creditor by the collusion and concurrent testimony of both husband and wife. For that reason, the testimony should be scrutinized with great care for the purpose of thwarting mere collusion. We have scrutinized the evidence in this case with such point in view and are satisfied that the claim of the plaintiff is in no sense an afterthought, nor does it rest upon the mere collusion of the parties notwithstanding that they both concur in their testimony. The past conduct of the parties has been entirely consistent with the present claim. In July, 1907, the plaintiff brought an action of divorce against her husband. She alleged in her petition at the time that the land in question was her property, and that her husband held the legal title only in a resulting trust for her. This claim on her part was never denied by her husband either by word or conduct. Later the parties were reconciled and the divorce proceedings were dropped.

Knowledge of the sheriff's deed came to the plaintiff, within a few days after its issue, not through her husband, but through one Venneman and one Mathis. She immediately called upon the defendant's husband, A. O. Hauge, and asserted her right to the land, and offered to hold the purchaser harmless by restoring to her the full amount of the purchase with interest, costs, and $100 premium. It is manifest, therefore, that there was no occasion for any collusion between herself and her husband at any time prior to the expiration of day of redemption. On the whole record, we are quite ready to agree with the trial court that, as between the plaintiff and her husband, he held the legal title in trust for her as the equitable owner. And this fact will be assumed in the further discussion of the case. Of the effect this finding might have had upon the right of the execution plaintiff to levy upon this land at all is a question which we will have no occasion to consider. The plaintiff has eliminated such question entirely by offering at all stages of the proceedings to do the utmost equity toward the defendant and to fully reimburse her. The trial court took her at her word, and incorporated in the decree entered below the requirement that she comply with such offer. It appears, also, that she has paid into court for the benefit of the defendant the full amount required under such provisions of the decree. She has recognized in advance the equitable right of the execution plaintiff to show that it relied upon the apparent title of her husband to the land in extending credit to him, and to be protected against hidden equities in favor of the wife. The defendant, therefore, has set up no claim to be an innocent purchaser without notice. And there is no issue in the pleadings on that question, although it has been somewhat argued. Plaintiff attacks the sheriff's sale on the ground that the property sold included the homestead, and on the further ground that there were various irregularities in the conduct of the sale such as to amount to a legal fraud upon her. She contends that the case in its facts is one of equitable cognizance and that she is entitled to equitable relief.

The plaintiff and her husband moved upon the farm with their family about the year 1894, and occupied the same as their homestead until the year 1899, at which time they moved to Des Moines, where they have lived ever since without acquiring any other homestead. The children have attended school there. The wife has suffered much from ill health. The husband has become engaged in the saloon business, and it seems to be conceded by both sides that he has formed a habit of unduly patronizing his own bar. Both husband and wife contend that they left the homestead temporarily only, intending to return thereto, and that they have never abandoned such...