Dunn v. Zwilling
| Citation | 62 N.W. 746,94 Iowa 233 |
| Parties | WILLIAM DUNN, Appellant, v. ZWILLING BROTHERS, et al |
| Decision Date | 05 April 1895 |
| Court | United States State Supreme Court of Iowa |
Appeal from Hardin District Court.--HON. S. M. WEAVER, Judge.
Action in equity for the specific performance of an alleged agreement to convey real estate, for an accounting, and for general equitable relief. A demurrer to the petition was sustained, and, the plaintiff refusing to plead further judgment was rendered in favor of the defendants for costs. The plaintiff appeals.-- Affirmed.
Affirmed.
Binford & Binford and T. Brown for appellant.
Binford & Snelling for appellees.
The material facts stated in the petition and admitted in the demurrer are substantially as follows: In June, 1887, the plaintiff owned in fee simple four hundred acres of land in Hardin county. He was indebted to Peter Binford in the sum of about three thousand five hundred dollars, to Zwilling Bros in the further sum of one thousand six hundred dollars, and to the Iowa Loan & Trust Company for about five hundred dollars. The amount due Binford was secured by a mortgage on two hundred and forty acres of the land, and that to Zwilling Bros. was secured by a mortgage on eighty acres of the land included in the mortgage to Binford, and on one hundred and sixty acres in addition. The indebtedness to Binford had been reduced to judgment, the mortgage securing it had been foreclosed, and a sale of the land covered by the mortgage had been made to Binford in the preceding November, to satisfy the judgment. The plaintiff was entitled to redeem from the sale, and his right to do so did not terminate until the twentieth of November, 1887. He was financially embarrassed, however, and unable to pay the indebtedness specified, from his own funds. In April, 1887 he entered into an oral contract with Zwilling Bros., by which they agreed to advance to him sufficient money to pay the debts against the property, including taxes then due and to become due. As a part of the transaction, they were to purchase of Binford, and receive as collateral security his certificate of purchase, and their own mortgage was to be considered a part of the loan. They were to maintain the plaintiff in the possession of the property, and he was to pay them not less than the sum of one thousand dollars each year, with interest at the rate of eight per cent. per annum, until the indebtedness should be paid. Zwilling Bros. were to hold the land as security for the money they advanced, and were to have the right to take a deed under the Binford purchase, and to foreclose their own mortgage, if they elected so to do, or to redeem under their mortgage, and take a deed thereunder to cut off other lienholders, and hold the sheriff's deed they should so obtain as collateral security. Leases for the premises were to be made, by which the plaintiff agreed to pay to Zwilling Bros. one thousand and fifteen dollars each year to the first day of March, 1894. The sums to be so paid were to apply on the indebtedness due from the plaintiff, first satisfying the annual interest at eight per cent. per annum, and all taxes. The plaintiff was to have the right to pay the entire amount which should be advanced by Zwilling Bros., including taxes, interest, and costs, at any time he should desire to do so, and when that was done they were to reconvey the premises to him. Zwilling Bros. foreclosed their mortgage, and purchased the premises included therein at foreclosure sale, redeemed from the Binford sale, and obtained an assignment of the certificate to him and purchased the claim of the Iowa Loan & Trust Company. They also redeemed the land from tax sale, and paid the taxes thereon. The plaintiff signed leases for the property each year, and gave his notes for one thousand and fifteen dollars, nominally as rent, but really as payments by virtue of the agreement. All this is alleged to have been done under their agreement with the plaintiff. It is further shown that the plaintiff paid to them various sums of money at different times, and that, after deducting payments so made, there was due to Zwilling Bros. on the first day of March, 1894, for all sums of money they had paid and advanced under the agreement, the amount of three thousand two hundred and sixty-five dollars and eighty-five cents. Daniel Zwilling and H. A. Zwilling, as copartners, constituted the firm of Zwilling Bros., and sheriff's deeds for the premises were issued to them under the sale to Binford and the one to Zwilling Bros. The plaintiff complied with the agreement on his part, remained in possession of the land continuously, and treated it as his own, constructing fences, digging ditches, and making other valuable improvements. The mortgage to Zwilling Bros. was junior to the Binford mortgage on so much of the land as was included in both. In August, 1887, Zwilling Bros. redeemed from the sale to Binford, and entered in the sale book, under the provisions of section 3115 of the Code, a statement to the effect that the sum of one thousand five hundred dollars was the utmost amount they were willing to allow on their mortgage by reason of the redemption. After that was done, the decree foreclosing their mortgage was rendered, and was for the full amount of their claims, notwithstanding the credit given as aforesaid. The plaintiff permitted the second foreclosure without having a credit of one thousand five hundred dollars allowed on the Zwilling Bros.' mortgage because Zwilling Bros. agreed that they only held the land in trust, and that the foreclosure of their mortgage was designed only to strengthen their title, and to extinguish certain liens which had not been cut off by the Binford foreclosure, and that the proceeding was not adversary between them and the plaintiff. H. A. Zwilling is now dead, and his heirs are made parties defendant with the surviving partner. Before this action was commenced, the plaintiff tendered to the defendants the sum he admits to be due, and avers that he is willing and ready to pay the full amount due, and offers to do so upon a reconveyance of the land to him. The plaintiff asks an accounting, that he be allowed to redeem the land, and that upon full payment the defendants be required to convey it to him, and for a full performance of the verbal agreement pleaded. The demurrer is both general and specific, and is based upon the following grounds: First. That the agreement relied upon by the plaintiff is within the statute of frauds: second, that the plaintiff relies upon an express trust, which was not declared or created by writing executed in the manner provided by statute; third, that the rights of the parties were adjudicated in the second foreclosure proceedings; fourth, that the transaction was fraudulent as against the creditors of the plaintiff.
I. Section 1934 of the Code is as follows: "Declarations or creations of trusts or powers, in relation to real estate,...
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