Elson v. Sullivan

• Decision Date: 17 February 1922
• Docket Number: No. 34150.,34150.
• Parties: ELSON ET AL. v. SULLIVAN.
• Court: Iowa Supreme Court

186 N.W. 769

ELSON ET AL.

v.SULLIVAN.

No. 34150.

Supreme Court of Iowa.

Feb. 17, 1922.

Appeal from District Court, Adams County; P. C. Winter, Judge.

Supplemental opinion. Judgment affirmed, as modified.

For former opinion, see 184 N. W. 628.

J. H. Richey, of Corning, for appellant.

A. Ray Maxwell and D. H. Myerhoff, both of Corning, for appellees.

ARTHUR, J.

The plaintiffs brought a simple partition suit, the subject-matter of which was a residence property consisting of a house and two lots. The three plaintiffs claimed to be the owners of an undivided one-ninth--that is to say, a total of one-third--and averred that the other two-thirds was owned by the defendant Jennie Paul Sullivan. They set out an abstract showing the devolution of their title. No resistance or pleading of any kind was filed by or for the defendant, though she appeared personally as a witness in the case. That the plaintiffs do own one-third of the property and the defendant owns the other two-thirds of the property is without any dispute. That it is not practicable to divide the property in kind, and that it should be sold, and the proceeds divided, is also without dispute. This was the prayer of the petition, and it was all of it. If the court had rendered a simple decree confirming shares and ordering a sale and partition, there could have been no question raised about the propriety of the decree. The trial court did, however, incorporate into the decree certain qualifications and conditions or charges of imaginary liens upon the shares of the respective parties. Those provisions of the decree were the following:

“And, the court further finds that, at the time of the death of Jacob Paul, Jr., intestate and without issue he left certain debts properly chargeable to and payable out of his estate, and that he died seized only of a certain horse of the value of $65, and the court finds that the debts so properly chargeable to said estate, and which have been fully paid, are as follows: The Bigger Company, $21.80; Dr. C. H. Bryant, $3.00; H. E. Christie, undertaker, $121.50--making a total of $146.30, from which should be deducted the value of said horse owned by said Jacob Paul, Jr., which is fixed and determined at $65, leaving a balance of indebtedness of $81.30; that said amount, $81.30, should be made a charge against said above-described real estate in its entirety.

And the court further finds that, at the time of the death of Rachel Paul, intestate, she left certain debts and charges properly payable out of and chargeable to her estate, and that she died seized only of one cow, the value of $75, and the court finds that the debts properly chargeable to her estate, and which have been fully paid, are as follows: H. E. Christie, undertaker, $131.50; Dr. C. H. Bryant, $98.25; Dr. F. Binder, $23, and costs of administration $13.50--making a total of $266.25, from which should be deducted the value of said cow, $75, leaving a balance due of indebtedness of $191.25; that the plaintiff's interest in and to said real estate, or the proceeds thereof, shall bear and be chargeable with one-third of said amount of $191.25, or the sum of $63.75, to be deducted before the distribution of the proceeds of said sale, and the balance, $127.50, to be borne and chargeable to the interest of the defendant, Jennie Paul Sullivan, in and to the proceeds of the sale of said real estate before the distribution thereof.

And the court further finds that the interest of the said defendant, Jennie Paul Sullivan, should bear and be chargeable with the value of said cow, $75, and said sum added to the proceeds of such sale finally due to the plaintiffs herein. * * *

It is further ordered, adjudged, and decreed by the court that out of the proceeds of the sale of said real estate there shall first be deducted and paid the cost of this action, expense of sale, abstract fees, referee's fees, and attorney's fees for the plaintiff's attorney, said attorney's fees to be based and calculated upon the entire amount for which said real estate shall be sold, without any deductions; second, that from the balance of the proceeds of said sale there shall be deducted the balance of the indebtedness of the estate of Jacob Paul, Jr., deceased, to wit, the sum of $81.30; third, that the balance then remaining shall be divided, except as hereinafter stated, as follows: To William Elson, one-ninth; to Anson Elson, one-ninth; to Walter Elson, one-ninth; and to Jennie Paul Sullivan two-thirds.

It is further ordered, adjudged, and decreed by the court that the interests in said balance of proceeds of sale of the plaintiffs be, and the same is hereby, charged with the sum of $63.75, the same being one-third of the aggregate indebtedness of the estate of Rachel Paul, deceased, and that the interest in said balance of proceeds of Jennie Paul Sullivan, defendant, be, and the same is hereby, charged with the sum of $127.50, the same being two-thirds of the aggregate indebtedness of the estate of Rachel Paul, deceased; that there be, and there is hereby, charged against the balance of the proceeds due the said Jennie Paul Sullivan, in addition to the deduction last above provided for, to be paid to the plaintiffs the further sum of $75, being the value of the cow of which the said Rachel Paul died seized, and which was sold to the defendant.”

The only possible justification for the above provisions must be looked for, if anywhere, in the testimony, and perhaps in the oral arguments of the parties before the district judge. It is not in the pleading. In order to get the bearing of the qualifications and charges made by the court in the decree we have to leave the issues temporarily, and to go into the background. This property had been occupied as a home by Jacob and Rachel Paul since the year 1889. It appears by inference that Jacob and Rachel each had children by former marriages. One child was born to them as the fruit of their marriage, known in the record as Jacob Paul, Jr. On December 5, 1914, Jacob and...