DeLong v. Scott

• Decision Date: 24 April 1974
• Docket Number: No. 2--56320,2--56320
• Citation: 217 N.W.2d 635
• Parties: Phyllis J. DeLONG, Individually and as guardian of Dianne K. Frost, et al., Appellee, v. Winston H. SCOTT, Appellant.
• Court: Iowa Supreme Court

Page 635

217 N.W.2d 635

Phyllis J. DeLONG, Individually and as guardian of Dianne K. Frost, et al., Appellee, v. Winston H. SCOTT, Appellant.

No. 2--56320.

Supreme Court of Iowa.

April 24, 1974.

Edward D. McCoy, Waterloo, for appellant.

Zellhoefer & Smith, Waterloo, for appellee.

Submitted to MOORE, C.J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.

McCORMICK, Justice.

Defendant Winston H. Scott appeals trial court's decree ordering specific performance of his contract to purchase real estate from plaintiff Phyllis J. DeLong. The sole issue is whether plaintiff met her obligation to tender marketable title. We find she did and affirm the trial court.

The property was once owned by Stella M. Barron who died testate November 6, 1955. Her devisees were her four children, one of whom, Rose Hemminger, was named executrix. The will included an authorization to the executrix 'to mortgage or convey real estate without order of Court first obtained.' Subsequently, as executrix, Rose Hemminger contracted to sell and later conveyed the premises to plaintiff without order of court. She thereafter filed her final report. The estate beneficiaries filed receipts and waivers of notice. An order was entered approving the final report, discharging the executrix, and closing the estate.

Plaintiff and defendant entered their contract in January 1972. When the time came for defendant to pay the balance of the purchase price, he objected to plaintiff's title on the basis of his attorney's opinion Rose Hemminger, as executrix, did not have title at the time she purported to convey the premises to plaintiff. The attorney asserted the property passed absolutely at Stella M. Barron's death to her four devisees and plaintiff could not give good title without first receiving the property from them by warranty deed.

Plaintiff's action for specific performance followed. The objection to title was raised in defendant's answer. On a motion by plaintiff for adjudication of law points under rule 105, Rules of Civil Procedure, trial court (Damsgaard, J.) held the deed from Rose Hemminger as executrix of the Stella M. Barron estate vested fee simple title in plaintiff. Trial was held later on an issue not involved in this appeal, and the court (Wood, J.) entered a decree in plaintiff's favor ordering defendant to perform his contract to purchase from plaintiff.

We will first consider the principle of marketability of title and then the merits of defendant's objection.

I. Marketability of title. In passing upon the marketability of title the issue is whether a man of reasonable prudence with knowledge of the facts would accept the title in the ordinary course of business. Title is not unmarketable unless there is reasonable doubt of its validity. When, as here, an objection is based on a point of law, the point must be fairly debatable before it can be said to raise such doubt. In re Estate of Oppelt, 203 N.W.2d 213, 215 (Iowa 1972), and citations.

II. Defendant's objection. The rule has long been established in Iowa that title to a decedent's real property passes instantly to devisees under his will and, in the absence of a will, to statutory heirs, subject to possession by the decedent's personal representative during probate proceedings for purposes of administration, sale, or other disposition under provisions of law. Noel v. Uthe, 184 N.W.2d 686, 688 (Iowa 1971); In re Estate of Smith, 240 Iowa 499, 511, 36 N.W.2d 815, 822 (1...