Davis v. Davis

• Citation: 156 N.W.2d 870,261 Iowa 992
• Decision Date: 05 March 1968
• Docket Number: No. 52631,52631
• Parties: Curtis DAVIS, Appellant, v. W. E. DAVIS, Appellee.
• Court: Iowa Supreme Court

Page 870

156 N.W.2d 870

261 Iowa 992

Curtis DAVIS, Appellant, v. W. E. DAVIS, Appellee.

No. 52631.

Supreme Court of Iowa.

March 5, 1968.

Life, Davis & Life, Oskaloosa, for appellant.

Johnson & Jordan, Knoxville, for appellee.

MASON, Justice.

This is an equitable action to enforce an alleged 1953 oral agreement that if plaintiff, Curtis Davis, 42, would contribute his work as a farmer and assist his defendant father, W. E. Davis, 72, in paying all defendant's debts he would make a will giving plaintiff half his estate. Plaintiff alleged defendant had made such a will but cancelled it and made other wills in violation of the contract. Plaintiff seeks to restrain his father from making a will contrary to the alleged oral contract.

At the conclusion of the evidence the trial court stated plaintiff had failed to carry the burden to prove the terms and provisions of the contract or that there was such part performance as to remove the bar of the statute of frauds.

Plaintiff contends he agreed to and did convey a life estate in one farm to his father, remain upon and operate the father's other farm and thereby help pay some indebtedness.

In answer defendant asserted no such agreement was entered into, the alleged contract is within the statute of frauds and is too vague and indefinite to constitute an enforceable contract.

The court found plaintiff did work defendant's farms but as a tenant sharing the income--a customary stock and grain share lease arrangement, and a transfer by plaintiff and his wife of a life estate in a tract of land was part of a settlement of the divorce action filed by defendant's wife, plaintiff's mother, wherein defendant agreed to transfer his interest in this farm with the understanding plaintiff and his wife would reconvey to him a life interest therein, and not in part performance of the alleged oral contract.

I. From the decree dismissing plaintiff's petition he appeals, assigning as propositions for reversal error in (1) holding plaintiff had failed to prove the oral contract by clear and convincing evidence, (2) holding plaintiff had failed to remove the oral contract from the statute of frauds by part performance, (3) finding that exhibit 3, a reconveyance of the life estate to defendant, was not part performance of an alleged oral contract, (4) not giving consideration and effect to all exhibits supporting the oral contract showing part performance thereof by plaintiff and (5) refusing to permit plaintiff to introduce as rebuttal the evidence of H. E. deReus.

II. Defendant W. E. Davis and his first wife, Maude, were divorced May 11, 1953. This marriage had produced two sons, W. E. Davis, Jr., and plaintiff, and six daughters. W. E. Davis, Jr., died in 1942 leaving no wife or children. After the divorce W. E. Davis married Lucille Davis who remains his wife. They have one son, Walter Howard Davis, usually called Howard.

Plaintiff intervened in the divorce action, claiming an interest in the farmland of his parents based on an alleged oral agreement in 1940 between him and his brother, W. E. Davis, Jr., on the one hand and their parents, W. E. and Maude Davis on the other, that if the boys stayed on the farm and helped the parents get out of debt the boys would get 'what the parents had when they were done.' This procedure is permissible. In Wharff v. Wharff, 244 Iowa 496, 501, 56 N.W.2d 1, 4, we said: 'Where property rights are involved in divorce proceedings, it is generally held, * * *, that a third person, whose interests may be adversely affected may intervene * * *.' Citing 27 C.J.S. Divorce § 91.

In 1940, the date of this alleged agreement, plaintiff was 16, had two years of high school left and W. E., Jr., was 20. Both boys stayed on the farm until 1942 when W. E., Jr., died. Plaintiff remained on the farm, graduated from high school in 1942 and married in 1947. Thereafter he continued to live with his wife in one of the two sets of buildings on the farm.

At the time the divorce action was pending defendant owned approximately 745 acres of farmland in Marion County, all in his name except 147 acres owned by defendant and his then wife Maude as tenants in common, and except the 'Wallace Farm' of 137 acres (part of the 745 acres) which was of record in the names of Curtis Davis and Walter Howard Davis as tenants in common. In addition defendant and Maude owned as tenants in common a 240-acre farm in Monroe County commonly called the 'May Place.' All the land was then unencumbered. Defendant had purchased the 'Wallace Farm' of 137 acres from his son-in-law prior to the divorce and had received a deed running to W. E. Davis. Before the deed was recorded defendant decided to put the land in Curtis' name, and with the latter's assistance deleted the 'W. E.' and inserted 'Curtis' in the deed. Apparently the name Walter Howard Davis was also added as a co-grantee before the deed was recorded. In 1957 defendant quieted title in himself to this 137-acre farm against his sons Curtis and Howard, without contest.

In the divorce action there was difficulty in effecting a property settlement. In general, Curtis was aligned with his father and the daughters with their mother in the divorce action. After it had been pending over a year plaintiff worked out a proposition of settlement with his mother which his father approved, it was embodied in written stipulation and the divorce obtained.

The stipulation provided in substance that Curtis should get the 240-acre 'May Farm', except for life estates in the mineral rights reserved to W. E. and Maude; defendant should have the 745-acre farm; Curtis should pay his mother and father $1500 each on or before December 1, 1953, evidenced by his promissory notes; and defendant should pay Maude $10,000 cash, execute and deliver to her his promissory note for $14,420 payable in five years, with 5 percent interest, secured by a mortgage on defendant's real estate.

Following the stipulation of May 8, 1953, defendant decided that instead of executing a note and mortgage to Maude for $14,420 as provided in the stipulation, he would borrow money from a Knoxville bank and pay Maude off in full following the divorce and this was done. At this time Curtis executed and delivered to each of his parents his promissory note for $1500 as called for in the stipulation. Curtis paid his note to his mother but the note to his father was never paid. It was not a part of the sum defendant paid Maude.

In the property settlement of the divorce action Maude executed and delivered to defendant a deed of any interest she might have in the 745-acre Marion County farm; defendant and Maude Davis executed a deed to plaintiff conveying the 240-acre Monroe County farm, reserving a life estate in the minerals; and plaintiff and his wife executed and delivered to defendant a deed for a life estate in this Monroe County farm. This latter exchange was made May 12, 1953, in the office of H. E. deReus, Curtis' attorney, in the presence of Mr. deReus, Curtis, defendant and defendant's attorney. Maude Davis was not present or aware that Curtis and his wife were conveying this farm back to defendant for life and there was no reference to the reconveyance in the divorce stipulation.

III. Plaintiff contends the 240-acre 'May Place' was conveyed to him in settlement of the alleged 1940 agreement with his parents but does not explain why he executed and later paid the promissory note to his mother. His explanation of the $1500 note to his father was, 'He told me that this note would help him out, he would give it to me if I would help him out.' Plaintiff further contends conveyance of the life estate to W. E. Davis was not part of the divorce settlement but based on a new agreement made in Mr. deReus' office when 'my father told me if I would give him a life estate in the 240 acres and stay on that big farm in Marysville (the Marion County farm) and farm it and help him get out of debt one more time I would get half of what he had when he was through.' Plaintiff testified he accepted this proposition by his father. It was not reduced to writing. Plaintiff does not contend there had been any discussion of the matter before going to deReus' office.

Defendant, on the other hand, contends there was no such agreement in 1940; the reason Curtis intervened in the divorce action was because the rest of the relatives were 'making a grab' so he might just as well 'make a grab,' too, and defendant agreed with him. Some six months after Maude commenced the divorce a number of defendant's relatives sued him for $75,000. The case was tried and decided favorably to defendant. The basis of the suit does not appear in the record. Defendant's explanation for Curtis' giving the two $1500 notes was that originally Curtis wanted the 137-acre 'Wallace Farm' but changed his mind and wanted the 'May Place' instead, figured it was worth $3000 more, so he agreed to pay each of his parents $1500. As a result of the trade Curtis did not defend against defendant's 1957 quieting title action to the 137-acre 'Wallace Farm.'

Defendant further contends the reconveyance to him of a life estate in the Monroe County farm was a part of the package presented to him by Curtis in the divorce settlement. He testified he wanted the income of approximately $4000 from this farm.

Both parties agree plaintiff remained and worked on the farm after his father's divorce until March 1, 1966, three months after this action was commenced. Plaintiff contends he stayed pursuant to the alleged oral agreement. Defendant says plaintiff stayed as a tenant or partner in a livestock farming operation on a 50-50 basis and received his full half of the income each year from and including 1953. Plaintiff admits he received the income every year except 1953, when he says he received only farm expenses, food and clothing out of $12,000 income.

To secure the loan from the Knoxville bank defendant gave a chattel mortgage...