Creel v. Hammans

• Decision Date: 07 March 1944
• Docket Number: 46308.
• Parties: CREEL v. HAMMANS et al.
• Court: Iowa Supreme Court

13 N.W.2d 305

234 Iowa 532

CREEL v. HAMMANS et al.

No. 46308.

Supreme Court of Iowa

March 7, 1944

O. M. Slaymaker, R. E. Killmar, and D. D Slaymaker, all of Osceola, for appellants.

Kenneth H. Davenport, of Creston, for appellee.

GARFIELD Justice.

On July 11 1930, S.W. Creel agreed in writing to sell to defendant Stella Hammans an undivided half interest in 200 acres of land in Union county for $5500, to be paid on or before July 11, 1940. On May 10, 1937, S.W. Creel assigned his interest in the contract to plaintiff, J. C. Creel, Jr., who brought this suit in 1941 to foreclose the contract. Defendants contend that plaintiff's assignor did not own the half interest he contracted to sell. The question of title to the property is therefore important.

The 200 acres were originally owned by John F. White who died in 1917. His will, duly probated, named his wife Emma as sole beneficiary. There is a controversy, however, as to whether the will devised a fee or only a life estate to the widow. The widow subsequently married S.W. Creel. She died on April 12, 1929 leaving a will executed prior to her marriage to Creel. The surviving husband, S.W. Creel, instituted a will contest that was settled by a written contract dated May 8, 1929, between S.W. Creel and Stella Hammans in which they each took half of Emma's property. Emma's will was then admitted to probate.

Stella Hammans was brought up by John F. and Emma White but had never been adopted. The original will of Emma White (Creel) apparently bequeathed her property to the children of Stella Hammans, but the words "the children of" were obliterated and, as probated, the bequest was to Stella. This bequest was of "My farm in Jones Twp and also my home in Afton and any other Real Estate of which I may die in possession." The "farm in Jones Twp" is the land in suit.

Defendants contend that under the will of John F. White, his widow Emma acquired only a life estate, that since there was no devise of the remainder, the 200 acres descended as intestate property to the collateral heirs of John F. White. Therefore, it is argued, S.W. Creel had nothing to sell Stella Hammans under the contract in suit, it is without consideration and impossible of performance.

I. The material part of the will of White reads:

"I will and bequeath all of my property of Evry discription both Real Estate and personal to my beloved Wife Emma White to controle and manage as she may see fit while she shall live, should she survivie me. I have full confidence in her ability to manage our Business interests and to do Justice by all concerned and I hereby nominate and appoint her as Executor of this my last will or give her power to appoint one if any should be needed."

We are agreed that this will provides for a life estate and not a fee. Of course, the important consideration in the construction of a will is the intent of the testator. In re Edwards' Estate, 231 Iowa 71, 77, 300 N.W. 673, 676. The effect of our holding is that the fee was left undisposed of by will and passed to White's heirs at law. Ransom v. Mellor, 230 Iowa 451, 455, 297 N.W. 861, 863, and citations. Where it can fairly be done, a construction will be avoided that results in intestacy. Horak v. Stanley, 216 Iowa 318, 249 N.W. 166, and citations. However, failure of the will to dispose of the remainder is not controlling. Anderson v. Gifft, 229 Iowa 515, 522, 294 N.W. 721, and citations. It is also true that in case of doubt the law favors a fee rather than a lesser estate. Putbrees v. James, 162 Iowa 618, 625, 144 N.W. 607. Nevertheless, the provision that the wife have the control and management of testator's property while she shall live can mean only that a life estate was intended. Anderson v. Gifft, supra; Horak v. Stanley, supra; Jones v. Clyman, 193 Iowa 1248, 1255, 188 N.W. 954; Ironside v. Ironside, 150 Iowa 628, 130 N.W. 414; Criley v. Cassel, 144 Iowa 685, 123 N.W. 348; Podaril v. Clark, 118 Iowa 264, 91 N.W. 1091.

II. But, the trial court held, and we think correctly, that the rights of the heirs of White were barred by the statute of limitations, section 11007(6), Code 1939. Where for the statutory period one holds hostile, actual, open, exclusive and continuous possession, under claim of right or title, he becomes the owner. Arnd v. Harrington, 227 Iowa 43, 48, 287 N.W. 292; 2 C.J.S. Adverse Possession, p. 520, § 8; 1 Am.Jur. 793, section 3.

Appellants contend the doctrine of adverse possession is not applicable here because, it is said, both S.W. Creel and Stella Hammans knew they had no title to the land and therefore could not in good faith make any claim thereto. It is true we have held that a claimant must in good faith believe he has some claim of right or title to the premises in order to acquire title by adverse possession. McFerren v. Wiltse, 210 Iowa 627, 630, 231 N.W. 438; Goulding v. Shonquist, 159 Iowa 647, 141 N.W. 24; Litchfield v. Sewell, 97 Iowa 247, 66 N.W. 104. The Litchfield case holds that a quitclaim deed from one known to be a mere "squatter" is insufficient basis for a claim of right.

But the doctrine for which appellants contend is not applicable here. One is not deprived of the benefit of the statute of limitations merely because his claim of right is unenforceable or his title is known to be defective. The doctrine of adverse possession presupposes a defective title. It is not based on, but is hostile to, the true title. Severson v. Gremm, 124 Iowa 729, 733, 100 N.W. 862; Ratigan v. Ratigan, 181 Iowa 860, 870, 162 N.W. 580, 165 N.W. 85; 2 C.J.S., Adverse Possession, p. 520, § 8; 1 Am.Jur. 793, section 3. If the statute were to run only in favor of a valid title, it would serve no purpose. The holder of such a title has no need to invoke the statute. Hughes v. Wyatt, 146 Iowa 392, 396, 125 N.W. 334, and citations. Where bad faith is held to negative an alleged claim of right, it is only another way of saying that such claim has been disproved. Id.

To avoid the claim of adverse possession, appellants rely upon testimony of the attorney for Stella Hammans that he told her and S.W. Creel at the time he prepared the contract in suit that, in his judgment, neither she nor Creel had any title to the land because Emma White Creel acquired only a life estate under the will of John F. White and could pass no interest to them. Following this the contract was signed and acted upon for ten years. Reliance is also placed upon testimony of Stella that she never claimed adversely to the heirs of John F. White. Notwithstanding this testimony, we think the claim of adverse possession is clearly proven.

On July 29, 1940, plaintiff brought a previous action, similar to the one now before us, to foreclose the contract in suit. Several pleadings were filed by defendants in that suit. On September 22, 1941, plaintiff dismissed his petition without prejudice. On the following day, however, that case was tried on the issues raised by the counterclaim of Stella Hammans to recover from plaintiff $1650 interest paid by her on the contract and plaintiff's reply thereto. There was a decree for plaintiff from which Stella appealed to this court. The appeal was dismissed because only a finding of fact, and not the decree proper, was assailed. Creel v. Hammans, Iowa, 5 N.W.2d 169. In her answer in that suit, sworn to by her, Stella stated:

"That at the time of the execution of the contract (in suit) *** S.W. Creel, and this defendant believed they each had an undivided half interest in said property under the will of Emma White Creel and the stipulation of settlement made in her estate.

"That at the time of the execution of the contract *** and ever since, plaintiff and plaintiff's assignor claimed the title to the property described in said contract under the will and stipulation of settlement in the estate of Emma White Creel, deceased."

Stella testified upon the former trial in answer to questions by her own attorney:

"Q. At the time you made that settlement with Willard Creel in 1929, did you believe that the farm which she (Mrs. Creel) referred to in her will as her farm in Jones Township was her property? A. I did.

"Q. And as far as you know, Mr. Creel believed it belonged to her too? A. I think so.

"Q. When did you find out there was some question as to whether Emma White owned this farm? A. Well, after J. C. Creel started suit last year (1940) ***.

"Q. And after we informed you that the Will of John F. White only gave Emma White a life Estate? A. Yes."

On cross examination in the former case Stella said that since the death of Mrs. Creel in 1929 she had claimed the farm as heir of Mrs. Creel, until after that suit was brought. In the present suit, Stella testified that she claimed to own half the land under the will of Mrs. Creel and the first contract with Creel and the other half under the contract in suit.

On May 25, 1929, S.W. Creel and Stella were appointed executors of the estate of Emma White Creel. Each had an attorney. The land involved here was listed by them in the inventory as Emma's property. They paid an inheritance tax of $517 to the state on the theory that Stella acquired a half interest in the real estate under Emma's will and the agreement of May 8, 1929, between S.W. Creel and Stella. The record indicates that Stella received half the rent on the land for 1929. When the contract in suit was made on July 11, 1930, she took possession of the entire farm as of that date. Creel's interest in the lease for the term commencing March 1, 1930, was assigned to Stella. Continuously since then she rented the farm, collected the rents, paid taxes and exercised full rights of ownership until after the prior suit was started against her in 1940.

On July 6 1940, the attorney who...