Day v. Lown

• Decision Date: 10 June 1879
• Citation: 1 N.W. 786,51 Iowa 364
• Parties: C. S. DAY, APPELLEE, v. JOSEPH LOWN ET AL., APPELLANTS.
• Court: Iowa Supreme Court

51 Iowa 364

1 N.W. 786

C. S. DAY, APPELLEE,

v.JOSEPH LOWN ET AL., APPELLANTS.

Supreme Court of Iowa.

Filed June 10, 1879.

Appeal from Jackson district court.

Action in equity to set aside a deed executed by the plaintiff, whereby he conveyed certain real estate to the defendant, Joseph Lown. There was a decree granting the relief asked. The defendants appeal.T. E. Elwood, Levi Keck and A. R. Colton, for appellants.

G. L. Johnson and L. A. Ellis, for appellee.

SEEVERS, J.

--In November, 1873, the plaintiff conveyed to the defendant Lown, by warranty deed, the real estate in controversy,the expressed consideration being one thousand five hundred dollars. In November, 1878, Lown conveyed the premises to his co-defendants, Spencer and Knittle. The conveyance to Lown is sought to be set aside on the following grounds: First, there was no consideration; second, it was temporary, and it was agreed the premises should be conveyed to the plaintiff whenever he should request it; third, the plaintiff was of weak mind and imbecile; and fourth, it was procured through fraud and undue influence.

The relief asked was resisted, because-- First, none of the grounds relied on ever existed; second, Lown purchased the premises and paid a valuable consideration therefor; third, conceding the existence of the grounds upon which relief was asked, they cannot be established by parol evidence; fourth, the conveyance was made to defraud creditors; and fifth, Spencer and Knittle are purchasers for a valuable consideration without notice. We have read with care the pleadings, evidence and arguments of counsel, and the following, briefly stated, are the conclusions reached:

I. The claim that Lown purchased and paid a valuable consideration for the real estate in controversy is unfounded. His statement of the transaction is unreasonable, and he is not corroborated. He does not pretend to have paid any part of the consideration when the deed was made, nor does he claim to have purchased on time. But he testifies the plaintiff was indebted to him, and the conveyance made in payment thereof. He does not claim that the indebtedness was evidenced by any writings which were delivered up. It must have consisted of a book account, but none is exhibited or claimed to have been lost or destroyed. If there was an indebtedness, it did not constitute the inducement or consideration of the conveyance. The pretended purchase was made in 1873, and no possession taken, or acts of ownership exercised or attempted, and no explanation of these facts given. This, taken in connnection with the fact that the plaintiff remained in possession, made improvements, paid the taxes, and received the rents and profits, forces the conclusion that Lown, for several years after the conveyance, did not regard himself as the owner of the premises in controversy.

It is proper we should allude to what is claimed to be two acts of ownership exercised by Lown. He was notified by the owner of abutting premises to build a partition fence, and he and the plaintiff did so. This was done, we think, because he was the holder of the legal title, and he might become responsible if the fence was not properly built, and from no other reason. He also paid one dollar and eighty cents road taxes, in 1877. This was done at a time when he was advised the plaintiff would take steps to enforce a reconveyance, or set aside the deed. Why or for what reason he paid these taxes is not shown. This late zeal in this direction has a tendency to show he was clutching at trifles, for the purpose of strengthening his claim to the premises, which he, at that late day, had concluded to set up. We feel satisfied the defense interposed by Lown is devoid of merit.

II. The plaintiff was in possession at the time Lown conveyed to his co-defendants. The latter, therefore, are chargable with notice of his rights and equities. Their title depends upon the question whether the plaintiff is entitled to and can have, under the established rules prevailing in courts of equity, the relief asked. This question we now proceed to consider.

III. There was no consideration for the conveyance, but can the plaintiff be permitted to prove this by parol when a consideration is recited in the deed for the purpose of avoiding it? That parol evidence is admissible to prove that the consideration is other and different from that stated in the deed, is regarded as settled by a decided weight of authority. To say the least, this cannot be said as to the question under consideration. Deeming it unnecessary to determine the question, we content ourselves with stating it, it having been discussed by counsel.

IV. In the original petition the plaintiff asked a re-conveyance, on the ground the conveyance to Lown was a trust. This was abandoned in the amended petition. This question has been discussed by counsel, but as it is not in the case no determination thereof is made. It may be properly remarked that if there was a trust it was express, and that it is doubtful whether it can be established by parol. Code, § 1934.

V. The conveyance cannot be set aside because the plaintiff was imbecile or of weak mind. There is a failure of proof in this respect. It is true the plaintiff had for some years been addicted to an excessive use of intoxicating liquors, to a degree his intellect was probably impaired, but not sufficiently so to warrant the setting aside the deed on this ground alone.

VI. The remaining ground of relief is fraud and undue influence. At the threshold of the discussion we are met with the objection that parol evidence is inadmissible because of the statute of frauds. That statute was enacted to prevent fraud. If the conveyance in question was procured through fraud, and the statute could be interposed to prevent its being established by parol, the effect of the statute would be to enable the defendant Lown to perpetrate and carry into effect his fraud, instead of preventing him from so doing. It is a trite but true saying that fraud vitiates all contracts, and it may be shown by parol, notwithstanding the contract may be evidenced by writing, and the effect of the parol evidence may be to contradict or impeach it. Perry on Trusts, § 226, and authorities cited.

This brings us to the question whether fraud has been established. If the age of the plaintiff was proven, it has escaped our attention, but we judge he was upwards of forty years of age when he was married, in 1865...