Hardy v. Daum

Decision Date12 March 1935
Docket Number42824.
Citation259 N.W. 561,219 Iowa 982
PartiesHARDY v. DAUM et al.
CourtIowa Supreme Court

Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.

Plaintiff seeks partition of a 224-acre farm, claiming that she and her husband, the defendant J. H. Hardy, are the owners of a six-ninths interest in said property. Defendant, Elizabeth Daum, denies the title ownership as alleged in the petition denies plaintiff's right to partition; and by cross-petition alleges ownership in herself of both a three-ninths legal and a two-ninths equitable interest in said property. The lower court denied partition, and entered a decree in favor of defendant. Plaintiff appeals.

Affirmed.

Geo R. Ludeman, of Mason City, for appellants.

Senneff, Bliss & Senneff, of Mason City, for appellees.

KINTZINGER, Justice.

Appellant alleges that she is the owner of an undivided three-sixths, that her husband, J. H. Hardy, is the owner of an undivided one-sixth, and that the defendant is the owner of an undivided two-sixths, of the real estate in question. Appellee contends that the Hardys own four-ninths of the property and Mrs. Daum five-ninths, subject to a lien in favor of the Hardys for two-thirds of the $3,500 advanced by them to purchase an outstanding one-third interest in the property.

Prior to 1932 the farm belonged, in equal shares, to the plaintiff, Minnie Hardy, to her sister, the defendant, Elizabeth Daum, and to Herman J. Doderer, their brother. Mr. Doderer's interest was sold in foreclosure proceedings to Bella and Ruth Doderer in July, 1932. At that time Mr. Doderer also owed Minnie Hardy, appellant, about $3,000, and Elizabeth Daum, appellee, about $6,000.

Before the expiration of the redemption period, Mr. Daum, in behalf of his wife and the appellants Mr. and Mrs. Hardy, entered into negotiations with Mr. Doderer for the purpose of securing his one-third interest in said property at the lowest price possible, in order to recoup their loss on the personal indebtedness of Mr. Doderer to his sisters, by a probable future increase in land values. Mr. Doderer told them that, unless they purchased the interest of Ruth and Bella Doderer, he would file an application for an extension under the Moratorium Act.

As a result of the negotiations, the Doderers offered to sell their one-third interest for $3,500. This was less than the sisters considered the property worth, and it was purchased for that amount. When the negotiations were pending it was mutually understood between the Daums and the Hardys that Mrs. Daum had no cash to make an immediate payment for a share of the Doderer interest. Appellees claim that it was then orally understood and agreed that the Hardys furnish all the money to purchase the Doderer interest; that Mrs. Daum should have two-thirds of that interest, and Mrs. Hardy one-third, because Mr. Doderer was indebted to them in such proportionate amounts, and that Mrs. Daum repay the Hardys two-thirds of the purchase price within five years at 6 per cent. interest. Appellee contends that it was orally agreed between them that Mrs. Daum make a partial payment of $500 on her share by March 1, 1934; that pursuant to the oral agreement the Hardys paid Bella and Ruth Doderer for their interest in said property and received a deed therefor.

It is undisputed that the Hardys and the Daums had conferences for the very purpose of securing the one-third interest formerly held by their brother, to recoup them, in part, from any losses they might sustain because of his indebtedness to them. Mr. Doderer was losing his one-third interest in this farm, and he made the proposal that the two sisters take over his one-third interest, from the holders of the sheriff's certificate of sale, in such a manner that Mrs. Daum have two-thirds and Mrs. Hardy one-third of his former interest. The evidence tends to show that the whole transaction was initiated for the purpose of saving Mrs. Daum and Mrs. Hardy from an entire loss on the debts due them by their brother.

Appellee claims that it was orally agreed between them that the Hardys furnish the money; that the deed be executed to the Hardys; and that Mrs. Daum have five years from July 15, 1933, in which to repay the two-thirds of the purchase price advanced for her.

The negotiations with Mr. Doderer were conducted by Mr. Daum, the husband of Elizabeth Daum, at considerable expense, in time and money. Pursuant to the negotiations, a conveyance of the interest of Mr. Doderer and the purchasers of the sheriff's certificate was executed to Minnie Hardy and her husband, J. H. Hardy, for the consideration of $3,500. Appellee contends that the Hardys are holding this deed as security for that portion of the purchase price they advanced for Mrs. Daum, or two-thirds of the $3,500. The evidence shows that after this deed had been executed Mrs. Daum returned Doderer's note, representing his indebtedness to her, marked " cancelled." Thereafter, Mr. Doderer supplied some labor and materials on the farm and received five-ninths of the payment therefor from Mrs. Daum, and made a request for the other four-ninths from the Hardys, who admitted owing him that amount.

Much evidence was introduced, and the abstract filed is simply a copy of the transcript. We are not disposed, and it is not deemed necessary, to set out the testimony in detail. There is an apparently hopeless conflict in some of the testimony between the parties. A careful analysis of all the testimony, both oral and written, convinces this court that the evidence offered on the part of appellee is sufficiently supplemented by the admissions of appellants, the adverse parties, and by their written letters and statements, to establish the agreement as contended by appellee.

There was much oral evidence offered on behalf of appellee to establish the oral agreement as contended for by her. In support of the evidence, to sustain the oral agreement, she offered in evidence a check signed by Mrs. Daum for $57.78, dated July 28, 1934 indorsed: " Taxes on 5/9ths Bath farm." The check was payable to the county treasurer, but sent to the Hardys, who paid it to the county treasurer for five-ninths of the taxes due at that time. She also introduced in evidence a written report, signed by J. H. Hardy, who was then acting as agent for his wife, in which appeared an expense item of $2 which Mrs. Daum paid for recording the deeds from the Doderers. This report also shows the payment of five-ninths of the taxes by Mrs. Daum and four-ninths of the taxes by Mrs. Hardy. Appellee also offered in evidence a letter written to her husband for Mrs. Hardy, in which it is stated:

" Last corn loan received some time ago. I am sending check of $150 for Elizabeth. Balance of $285.31 will be
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