Frederick v. Shorman, 52136

Citation259 Iowa 1050,147 N.W.2d 478
Decision Date13 December 1966
Docket NumberNo. 52136,52136
PartiesHoward FREDERICK and Hilda Frederick, Appellees, v. Robert L. SHORMAN, Defendant, Yvonne Shorman, Defendant-Appellant.
CourtUnited States State Supreme Court of Iowa

Edgar L. King and G. K. Thompson, Cedar Rapids, for defendant-appellant.

Fred C. Fisher, Jr., Cedar Rapids, for appellees.

MASON, Justice.

Hilda Frederick, principal plaintiff, seeks to enjoin Yvonne Shorman, principal defendant, from attaching certain real estate and for a declaratory judgment that Robert L. Shorman, also a defendant, Yvonne's former husband, had no interest in the premises or in the alternative that plaintiff and her present husband, Howard Frederick, have a lien on Robert's interest (for purchase, improvement, repairs and taxes) superior to the attachment lien.

From decree determining that Robert had no interest in the real estate subject to attachment and permanently restraining Yvonne from proceeding with attachment and levy, she appeals.

Since the real contest is between Hilda and Yvonne the former will be refereed to as plaintiff and the latter as defendant.

I. Yvonne held a judgment against Robert, her former husband, for child support. Robert had record title to a joint tenancy in real estate consisting of a residence property in Cedar Rapids, with his mother, plaintiff Hilda Frederick. This property was purchased in 1950 but the title was taken in the joint names of Hilda Bjornsen, plaintiff's maiden name, and her son, Robert. Hilda paid the entire consideration. The deed conveying the property reads:

'(We) hereby SELL AND CONVEY unto Hilda H. Bjornsen (unmarried) and Robert L. Shorman (unmarried), Mother and Son, as joint tenants and not as tenants in common, with the full right of the survivor to take the whole title and right of property to both in fee simple and absolutely.'

Robert later married Yvonne, and his mother married her co-plaintiff, Howard Frederick. A child, Roberta, was born to Robert and Yvonne; later they were divorced and a judgment for child support was entered against Robert. He failed to pay, Yvonne obtained an execution on the judgment and levied upon his interest in the realty.

Thereupon plaintiffs brought this action. Upon trial the court held that since Robert contributed nothing to the purchase price of the property or its upkeep he had no interest and entered the decree from which this appeal is taken.

Plaintiff pleaded 'The purchase of the property was for the purpose of making and establishing a homestead for plaintiff and her son and under an agreement with her son, Robert, that he would continue to reside in said premises and would contribute from his (Robert's) funds and earnings, a sum equal to 1/2 of the purchase price and further sums equal to 1/2 of the upkeep, taxes and maintenance of the home,' and she and Howard Frederick made substantial and valuable improvements in the premises, paid all taxes, insurance and repairs.

II. Defendant assigns three propositions relied on for reversal: The court erred (1) in failing to find a completed gift from Hilda to her son; (2) in finding Robert had no interest in the attached real estate; and (3) in giving consideration to a letter as having probative force to which objections had been made that it was incompetent, irrelevant and immaterial.

Defendant contends under her first assignment the court overlooked the fact there was a gift of an interest in real estate and Robert's failure to contribute to the purchase price is of no significance since consideration is not requisite to a valid gift; the question is the extent of the interest conveyed as a gift; and plaintiff failed to show the transfer in the form contained in the deed, supra, was not a gift.

Plaintiff, on the other hand, asserts the gift theory is raised for the first time on appeal; it was not considered by the trial court because, among other things, defendant failed to plead it.

Defendant replies this is a matter of general defense; since the deed is regular on its face, the burden is on plaintiff to prove by clear and convincing evidence that the grantees were not equal joint owners; plaintiff is attempting to overcome a presumption arising from the record title; the issue made by plaintiff's petition was that her son had no interest in the property; it was as much plaintiff's duty to negative an interest arising through gift as through purchase; since Robert paid nothing toward the acquisition or improvement of the house, his interest, if any, must have been acquired by gift.

Plaintiff pleaded a special contract to the effect that at the time she purchased the property she had an agreement with her son that he would repay her for the half interest he acquired under the deed, which agreement he failed to carry out. By commencing this action she took the burden of proving Robert had no interest in the real estate which could be reached by defendant's writ of execution.

III. 'The legal or equitable nature of a declaratory judgment proceeding is to be determined by the pleadings, the relief sought, and the nature of each case.' Henderson v. Hawkeye-Security Insurance Company, 252 Iowa 97, 100, 106 N.W.2d 86, 88.

This action is equitable in nature and is so treated here. The court gives weight to the findings of the trial court but is not bound by them. Rule 344(f) 7, Rules of Civil Procedure.

Under a general denial defendant may prove anything tending to show plaintiff's allegation is untrue. Thus in an action to recover property based on a superior right or title proof of a gift to defendant may be made under a general denial. 38 C.J.S. Gifts § 64.

If an unqualified transfer to the donee is proved, one asserting the delivery was made on some condition or trust has the burden of establishing such condition or trust. 38 C.J.S. Gifts § 65.

Plaintiff is required to carry the burden on this issue by a preponderance of the evidence, '* * * (but) this is not a fixed or unvarying standard. What would be sufficient to constitute a preponderance of the evidence and to sustain a judgment in an ordinary case might not suffice in another, where, in addition to the burden resting upon the plaintiff in any case, particular presumptions are to be overcome. This is especially true where a plaintiff seeks by parol evidence to overcome the presumptions arising from the express terms of a conveyance, or from the relations of the parties concerned therein. * * * The very terms of the conveyance are evidence, and must be overcome. Hence much more certainty and conclusiveness are requisite than in ordinary cases.' Hein v. W. T. Rawleigh Company, 167 Neb. 176, 92 N.W.2d 185, 190.

To sustain this burden plaintiff is required to overcome certain rebuttable presumptions. First, a deed is presumed to be that which it purports to be and the burden is on the one asserting otherwise. When a deed sufficient to vest title is executed and delivered, the law raises the presumption of an intent to pass the title in accordance with its terms and the burden rests on the one who avers a different intention. 26A C.J.S. Deeds § 181. Second, there is a presumption that joint tenants hold in equal shares. 48 C.J.S. Joint Tenancy § 6. Third, where a parent causes a deed conveying land by a third person to be placed in the names of a parent and a child and the parent furnishes the consideration, the law presumes a gift by the parent or advancement to the child. McGinnis v. McGinnis, 159 Iowa 394, 397, 139 N.W. 466, 467; 6 Thompson on Real Property (1962 Replacement), § 3129.

In fairness to the trial court it should be noted that this 'gift' defense was apparently not asserted at trial, and for that reason presumably not considered by it. But the issue does inhere in defendant's denial and thus presents a question of law we believe should be considered. In considering this matter as proper subject for argument here we recognize the validity of plaintiff's statement that had it been raised at trial the record might well have been made factually more complete.

Defendant's position is fairly simple. She contends that considering the foregoing rules of construction Robert was still shown to be the owner of a beneficial half interest because the evidence fails to rebut a completed gift by mother to son. She concedes she can reach by her execution only the interest Robert has in the property and she does not claim to be in the position of an innocent purchaser for value.

Plaintiff is attempting to change or overcome the presumption arising from the terms of the deed she caused to be executed and delivered.

It requires less positive and unequivocal testimony to establish a gift from mother to her children than it does a gift between persons not related and in cases where there is no suggestion of fraud or undue influence, very slight evidence will suffice. Love v. Francis, 63 Mich. 181, 29 N.W. 843, 847. That a gift may be established by proper evidence, even when supported only by parol testimony, see Belgard v. Belgard, 202 Iowa 1356, 1357, 212 N.W. 116, 117. Consideration is not necessary to support a gift; after delivery--which in the instant case was by the execution and recording of the deed--the gift is irrevocable except, of course, upon mutual agreement of the parties. Stonewall v. Danielson, 204 Iowa 1367, 1371, 217 N.W. 456, 458.

As stated, plaintiff pleaded there was a special agreement between Robert and herself whereby he should repay to her half the property costs. She made no attempt to prove this and rested her case on the claim she intended something squarely contrary to the terms of the deed, which she has never asked to be reformed. Her pleaded case was that she intended Robert should have a half interest in the property for which he owed her half the purchase price and upkeep; she sought to prove she never intended Robert should be the owner of any interest until her death.

She said: 'I was unmarried at the time I purchased the...

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