Ida Cnty. Sav. Bank v. Johnston

• Citation: 136 N.W. 225,156 Iowa 234
• Parties: IDA COUNTY SAVINGS BANK v. JOHNSTON.
• Decision Date: 17 May 1912
• Court: United States State Supreme Court of Iowa

156 Iowa 234

136 N.W. 225

IDA COUNTY SAVINGS BANK

v.JOHNSTON.

Supreme Court of Iowa.

May 17, 1912.

Appeal from District Court, Ida County; F. M. Powers, Judge.

Action to quiet title and to recover possession of a fractional 40 acres of land. The defendant answered that he was in possession of the land in pursuance of purchase thereof from the plaintiff through its officers. By cross-bill he prayed that his title thereto be quieted. There was a decree for the defendant on his cross-bill, and the plaintiff appeals. Modified and remanded.Charles S. Macomber, of Ida Grove, for appellant.

M. M. White and Johnston Bros., both of Ida Grove, for appellee.

EVANS, J.

[1] The plaintiff is a savings bank located in Ida Grove, Iowa. The alleged oral purchase of the land by defendant occurred in 1901. The plaintiff had recently acquired the land by foreclosure of a mortgage thereon. Prior to June 4, 1901, Hadlock was president and Dessel was vice president of the bank. On the date named, Dessel became president and Hadlock retired and soon thereafter removed from the state. The land was acquired by the bank in 1900. At about the same time, a contract of sale thereof was made to one Buss. By reason of some objection to the title, such sale was not consummated, and Buss became a renter of the property from the plaintiff for the year beginning March 1, 1901. The defendant was a practicing attorney, and was attorney for the bank in various suits pending at and before such time. He was also a stockholder. It is the claim of the defendant that, shortly after the failure of the Buss contract, the managing officer or officers of the bank solicited him to purchase the same, and that he agreed with them upon a price, and that he took possession in pursuance thereof by renting the land to Buss in his own name for the ensuing year beginning March 1, 1902, and that he has continued in such possession ever since, with the knowledge and acquiescence of the bank officers. On the other hand, the appellant contends that there never was a completed agreement between the appellant's officers and the defendant, and that in any event such officers of appellant were without authority to make the alleged agreement. We have therefore first to dispose of a question of fact relating to the alleged negotiations of 1901.

The defendant in his behalf called as a witness H. A. Dessel, the president of the plaintiff bank, and personally examined him as follows: “Q. Up to the time you left the bank you had made no efforts to rent this land for the year 1902? A. Not that I remember of. Q. Why? A. At that time, if I remember right, you had some talk with Mr. Hadlock relative to this piece of land. Q. Was it your understanding that I bought the land? A. My understanding was that you had concluded or agreed upon a price. Q. What was that price? A. To the best of my recollection was $1,300 or $1,350. Q. And you knew, or at least you understood, that I had some talk with Mr. Hadlock and had agreed on a price with the savings bank for this land? A. Certainly. Q. And you knew, after you talked with Mr. Hadlock or myself, or whoever it might have been, that the bank had lost title to that land, at least to such an extent that you did not think it was necessary, as the active manager in charge of the bank's interest, to give it any further thought, care, or attention, and you made no attempt to lease it for the year 1902? A. As I told you before that I understood, as near as I remember it, that Mr. Hadlock told me he had some kind of a deal with you, and as I told you, to the best of my recollection, it was $1,300 or $1,350, or in that neighborhood anyway, and I spoke to you, wanted to get it fixed up. You said you had a claim against the Ida County Savings Bank. They were owing you. Q. In all the talks, the talk was not that I did not own the land, was it? A. The talk was, I talked from the standpoint of what Mr. Hadlock had told me, and you claimed that you had a bill against the bank. Q. In all the talks we might have had you never claimed that I didn't own this land? A. You certainly didn't own it because you didn't pay for it. Q. I had bought it, bargained for it? A. I say all I knew about it was that Mr. Hadlock told me that you had made a bargain for it. Q. There never was any dispute between you and I, at any time, was there, that I didn't own the land? A. I don't think we ever argued that question. Q. The whole talk was how it was to be paid for, that was the question, wasn't it? A. The question was to make a settlement of some kind. Q. A settlement of what? A settlement of what I paid for this land? The dispute was about what I paid for the land, wasn't it? A. The dispute was just the same as the one that was brought up in the minutes of the board of directors to get a settlement--to get it out of the world. That was the dispute. Q. Mr. Hadlock told you that I had bargained for the land? A. As far as I can remember it; yes. Q. Hadlock told you that I had bargained for that land, and the price that I was to pay for it. Is that right? A. My recollection is that he had a deal with you and bargained for the piece of land that was unsettled, but the price was made. The land that I talked with Mr. Hadlock about was the land in controversy.”

The defendant himself testified as follows: “Some time in the year 1901 and before September 13, 1901, that date I wrote to Mr. Buss regarding the renting of the land. At that time I owned the land because I was negotiating with Mr. Buss to rent it. The bank had the land and it was bringing but little rent. Mr. Dessel suggested to me that if I would buy it myself they would make a discount on what they offered it to Buss for. Then I went up there, I had talks with Mr. Dessel and Mr. Hadlock as to which one the deal was closed with, whether one or both. I can't remember positively, but the upshot of it was that they discounted the price to me $100, as I understand it. I was to take the land for $1,200. It was incumbered by judgments complicated that particular time I think by a suit Chase v. Conry. That at the time I purchased this land from the bank they turned over to me the abstract of title together with the opinion of the loan company. I leased the land in the fall or early fall of 1901 to Mr. Buss. Mr. Buss went into possession under my lease in the spring of 1902, and he has continued under my lease under his tenancy with me from the spring of 1902 to the present time, paying me the rent.”

The foregoing is the only testimony in the record relating to the negotiations. It is not very definite in its details. The details of the negotiations, however, are not of themselves of controlling importance if it is otherwise made to appear that an agreement for the purchase at a fixed price was in fact reached and that the defendant went into possession thereunder. No deed or writing of any kind was ever executed. The circumstance which bears most strongly against the defendant is that he has never paid for the land. Neither has he ever tendered payment in any formal way. It also appears that, at the time of such negotiations and afterwards, something was due the defendant from the plaintiff for attorney's fees in impending suits. On July 24, 1902, the plaintiff paid to the defendant a bill of $521.65 for services to date in the district court in the “Knepper Case.” At a later time the plaintiff paid him $1,000 in the “Sidensticker Case.” In the collection of these amounts by defendant from the plaintiff bank, no account was taken of the $1,200, alleged purchase price of the land. As against this, however, it is claimed by defendant that the plaintiff bank was owing him at the same time about $525 for services rendered in other cases, principally the “Willett and Heinrich Cases.” He also claims that he was then expecting to perform other services, and especially in the Knepper Case which had been appealed to the Supreme Court, and he contends in his evidence that such services rendered, and thereafter rendered, were more than sufficient in amount to pay the full purchase price of the land.

Upon the whole record we think it must be said that the president of the bank and the defendant did agree upon a price for the land, and that possession was taken in anticipation of mutual performance of such agreement. The testimony of Mr. Dessel, president of the bank, will permit of no other conclusion at this point. It is earnestly argued by counsel for appellant that Mr. Dessel was mistaken in his testimony. His candor as a witness is conceded. The fact remains that for many years he has acquiesced in the possession of the land by the defendant upon the theory that he was to have a conveyance thereof upon payment of an agreed price. The defendant has collected all rent and paid all taxes without protest, until the bringing of this suit; the rent, however, being greater for each year than the tax. This long acquiescence on the part of the managing officers, with knowledge of the claim of defendant, is in itself in the nature of an admission by the corporation of the existence of such agreement. The weight of such acquiescence as an admission may be greater or less according to the circumstances.

[2] Up to this point we are assuming authority in the president to make the agreement contended for. It is strongly urged by appellant that there was no such authority in the president. We will give that question further consideration later. The agreement, such as it was, was executory and was wholly unperformed on defendant's part. The agreement manifestly contemplated simultaneous performance by both parties. The defendant bargained for no credit nor for deferred time of payment. It was no part of the agreement that defendant's attorney's fees should apply upon the purchase price. This would not prevent the defendant from offsetting any claim in his favor against the purchase price in a proper way. But the mere existence of...