Frankel v. Hites

• Decision Date: 22 December 1900
• Citation: 84 N.W. 706,112 Iowa 631
• Parties: ANSELM FRANKEL AND CARRIE BALDAUF, Trustees, v. EMANUEL HITES, Appellee, AND W. S. LOCKWOOD, Administrator, et al., Appellants
• Court: Iowa Supreme Court

84 N.W. 706

112 Iowa 631

ANSELM FRANKEL AND CARRIE BALDAUF, Trustees, v. EMANUEL HITES, Appellee, AND W. S. LOCKWOOD, Administrator, et al., Appellants

Supreme Court of Iowa, Des Moines

December 22, 1900

Appeal from Mahaska District Court.--HON. A. R. DEWEY, Judge.

ON the twelfth day of March, 1896, Emanuel Hites executed to Reuben Shibley his warranty deed of the southwest 1/4 southeast 1/4 of section 1 in township 74 north, of range 17 west of fifth Principal Meridian. The agreed consideration was $ 800, of which $ 600 was left with C. P. Searle, to be forwarded to the Aetna Life Insurance Company, to obtain a release of this 40 acres from a mortgage of $ 3,000 held by it on this and other lands. Searle did not send the money, but failed in June, 1896. On November 20th of that year Shibley began an action against Hites for breach of warranty, based on the existence of this mortgage. Later, on the twenty-fifth of this month, plaintiffs began suit for the foreclosure of said mortgage. These actions were consolidated, and thereafter Lockwood, who had been appointed administrator of the estate of Shibley, who died in September, 1898, and the heirs of deceased, were made parties. The pleadings, when completed were such as to raise but the one issue. Did leaving the $ 600 with Searle constitute payment to Hites? The district court answered this question in the negative, and entered decree accordingly. The administrator and heirs of Shibley appeal.

Affirmed.

John O Malcolm for appellants.

Bolton, McCoy & Bolton and L. C. Blanchard for appellee.

OPINION

LADD, J.

Hites sold 40 acres of land to Shibley for $ 800. The Aetna Life Insurance Company held a mortgage on it and other land, but had promised to release the 40 upon the payment of $ 600. About March 12, 1896, Hites' son, acting for his father and Shibley, accompanied by Lockwood, met, in pursuance of a previous arrangement, at Searle's office to close the deal. There the deed was delivered to Shibley, and a draft of $ 800 was either handed by the latter to Searle, or laid on the counter. An abstract was also furnished by Hites, and a receipt for the money given by Searle to Shibley. Hites' testimony to this effect is fully corroborated by Shibley's subsequent statements, though inferentially denied by Lockwood. Hites also testified that Shibley advised Searle that he wanted a release as soon as he could obtain it, and that the latter...