Eastman v. De Frees

• Decision Date: 09 January 1945
• Docket Number: 46608.
• Citation: 17 N.W.2d 104,235 Iowa 488
• Parties: EASTMAN et al. v. DE FREES et al.
• Court: Iowa Supreme Court

17 N.W.2d 104

235 Iowa 488

EASTMAN et al. v. DE FREES et al.

No. 46608.

Supreme Court of Iowa

January 9, 1945

Lappen & Carlson, of Des Moines, for appellants.

Emmert James, Needham & Lindgren and Lorna L. Williams, all of Des Moines, for appellees.

MULRONEY Justice.

The plaintiffs were the owners of a mansion type house, in the city of Des Moines, which had been converted into 7 apartments. On October 1, 1941, they entered into a contract to sell the house to the defendant H. L. DeFrees. There were actually two contracts executed by the parties on this date, identical in form and differing only in the amount of consideration. Without delving too deeply into the confusing financial dealings of these parties it is enough to say that the second contract, with the increased consideration, was made necessary because DeFrees received a portion of the money raised by a mortgage on the property. DeFrees went into possession of the property, but having failed to make payments provided for under the contracts, the plaintiff caused him to be served with thirty-day notice of the cancellation of the contracts on August 24, 1942. DeFrees failed to pay the amounts referred to in the notice within 30 days but, on September 29, 1942, a new contract was prepared, signed by DeFrees and mailed to the plaintiff in California. Plaintiff signed this contract and had the same recorded. When DeFrees failed to pay the amounts provided for under this contract, the plaintiff caused him to be served with thirty-day notice of cancellation on December 17, 1942. DeFrees failed to pay the amounts referred to in the notice within 30 days but remained in possession. Thereafter, on March 3, 1943, plaintiffs filed their petition in equity against DeFrees and his wife to quiet title in the property as against the claims of the defendant and upon their prayer for a receiver to collect the rents pending the trial of the case the court, after a hearing on the 8th of March, 1943, appointed a receiver to take charge of, and rent the premises. Defendants answered separately claiming there was no cancellation of the contracts of October 1, 1941 and that they were still in force; that no basis for the receivership existed; that no furniture could be taken under the cancellation; and that Bessie A. DeFrees was a joint owner of the furniture. Upon the trial the court found for plaintiffs and defendants appeal.

I. One of the propositions urged by defendants is that the contracts of October 1, 1941 'were not in default nor subject to cancellation on August 24, 1942,' the date of the service of notice of cancellation. This proposition was merely stated and it is not argued. The record fully sustains the default in the amounts set forth in the notice.

II. Defendants argue that there was no cancellation of any of the contracts because of failure to serve the notice 'upon necessary parties; and parties in possession.'

It is defendants' first contention that the cancellation notices were invalid because, although served on DeFrees, the 13 tenants of the seven apartments were not served. We think DeFrees was the 'party in possession' within the meaning of section 12390 Code of 1939. The evidence establishes that this was business property. The business was that of operating a furnished apartment house. It is the operator, not the occupants of the furnished apartments, who is in possession of such premises and entitled to notice of forfeiture.

It is defendants' second contention that the cancellation...