In re Hager's Estate

• Decision Date: 17 March 1931
• Docket Number: 40600
• Citation: 235 N.W. 563,212 Iowa 851
• Parties: IN RE ESTATE OF A. L. HAGER. v. REY HAGER MARTIN, Administratrix, et al., Appellees (and one other case) O. P. HERRICK, Appellant,
• Court: Iowa Supreme Court

235 N.W. 563

212 Iowa 851

IN RE ESTATE OF A. L. HAGER.

O. P. HERRICK, Appellant, v. REY HAGER MARTIN, Administratrix, et al., Appellees (and one other case)

No. 40600

Supreme Court of Iowa, Des Moines

March 17, 1931

REHEARING DENIED JUNE 20, 1931.

Appeal from Polk District Court.--O. S. FRANKLIN, Judge.

A petition was filed in the probate proceedings of the estate of A. L. Hager, deceased, by O. P. Herrick, in which he asks for the specific performance of a contract for the sale of real estate made by him with the administratrices of said estate, and for damages and an abatement on the purchase price on account of a shortage in quantity.

The administratrices filed answer and cross-petition, asking for specific performance of the contract against Herrick, the purchaser. The trial was had in equity, and the court found against the purchaser and dismissed his petition, and for the administratrices and rendered judgment against the purchaser for the amount of the purchase price, with interest, and decreed specific performance of the contract. Herrick appeals.

Affirmed.

Charles E. Hunn, Hiram S. Hunn, for O. P. Herrick.

Lehmann Hurlburt & Hossfeld, for Rey Hager Martin, Mildred Hager Elliott and Ella M. Hager.

Carl S Missildine, for Polk County.

Brammer, Brody, Charlton & Parker, for Rey Hager Martin and Mildred Hager Elliott, Administratrices of the Estate of A. L. Hager, Frank C. Waterbury and L. A. Andrew, Superintendent of Banking.

WAGNER, J. FAVILLE, C. J., and GRIMM, DE GRAFF, and EVANS, JJ., concur. ALBERT, J., not participating.

OPINION

WAGNER, J.

A. L. Hager died testate January 30th, 1923. His will was admitted to probate on March 6th of the same year, and Rey Hager Martin and Mildred Hager Elliott, two daughters of the deceased, were appointed and duly qualified as administratrices, with the will annexed. The estate became heavily involved, because of the large interests of the deceased in one of the banks in Des Moines, which failed and the affairs of which were wound up in receivership proceedings. The widow of said deceased elected to take under the law and her distributive share has been set off to her in real estate other than that involved in this litigation. The proceeds of the personal property of said deceased were inadequate to pay the debts and charges of the estate and it became necessary to resort to a sale of the real estate to obtain funds for said purpose. The general legal description of the real estate herein involved is: The West 125 feet of the East 200 feet of Lot One of the Official Plat of the Northwest Quarter of Section 8, Township 78, Range 24, West of the Fifth P.M. The administratrices obtained an order of court to sell said real estate and apply the proceeds upon the debts and charges of said estate. The property was known locally as "the Hager property, 2116 West Grand Avenue." The services of Botsford, a real estate agent, were obtained to aid in the sale of the premises, and on November 23, 1928, Herrick made the following offer:

"I hereby make an offer of $ 20,500 for the property known as the Hager property on West Grand Avenue, known locally as 2116 West Grand Avenue, consisting of a tract fronting 125 feet on Grand Avenue and extending back to the railroad right of way on the south approximately 634 feet, together with the improvements thereon, the same to be conveyed to me by general warranty deed and with abstract showing merchantable title free and clear of incumbrances.

"Yours truly,

"O. P. Herrick."

On December 3, 1928, the administratrices and the purchaser entered into a contract, the material portion of which is as follows:

"Witnesseth, that the said parties of the first part, (administratrices) in consideration of the covenants and agreements hereinafter contained, and subject only to the approval of Court, agrees to sell unto the party of the second part, (Herrick) the following described real estate, situated in Polk County, State of Iowa, to wit:

"West 125 feet of East 200 feet of Lot One (1) of Official Plat of Northwest Quarter (NW 1/4) of Section Eight (8), Township Seventy-eight (78), Range Twenty-four (24), West of the Fifth P.M., for the sum of Twenty Thousand Five Hundred ($ 20,500.00) Dollars, payable as hereinafter mentioned.

"And the party of the second part, in consideration of the premises, hereby agrees to and with the parties of the first part to purchase the above described real estate and to pay therefor to the said parties of the first part, the sum of Twenty Thousand Five Hundred ($ 20,500.00) Dollars, in cash upon the receipt of a duly and legally executed administratrices' deed to said premises and an abstract of title to said premises showing a merchantable title to the date of said administratrices' deed, free and clear of liens and encumbrances, except only zoning restrictions imposed by Ordinance of the City of Des Moines."

Said contract further provides that the abstract was to be furnished on or before December 31, 1928. On December 19, 1928, the Probate Court entered an order authorizing the sale of the West 125 feet of the East 200 feet of Lot One, of the Official Plat of the Northwest Quarter of Section 8, Township 78, Range 24 West of the 5th P.M., and approving the sale to O. P. Herrick. Said order of court provides:

"It is therefore ordered, adjudged and decreed that said contract of the administratrices herein with O. P. Herrick be and the same is hereby approved, and that the administratrices herein be and they are hereby authorized and directed to execute administratrices' deed to said O. P. Herrick, conveying all the right, title and interest of this estate in and to said real estate, to said O. P. Herrick.

"That the certain deed conveying said premises to said O. P. Herrick, this day presented to the court for its approval be and the same is hereby approved by this court, and the administratrices are authorized, empowered and directed to deliver said deed to said O. P. Herrick, upon receiving purchase price therefor."

The description of the real estate in the administratrices' deed is:

"West 125 feet of East 200 feet of Lot 1, of Official Plat of Northwest Quarter of Section 8, Township 78, Range 24, West of the 5th P.M., except such part thereof as has been heretofore effectively conveyed for railway or street purposes."

The abstract to the real estate was continued and certain objections to the same were made by the examiner for the purchaser, and on January 4, 1929, the purchaser, by a written instrument signed by him, extended the time for the furnishing of an abstract showing merchantable title until April 30, 1929. Said extension contract refers to the written contract of December 3, 1928, gives the same description of the real estate as given in the contract of purchase and then provides:

"Whereas, certain objections to the title to said property as evidenced by abstract of title heretofore furnished by said vendors to said vendee have been made by counsel for said vendee and the undersigned is willing to extend the time within which the vendors are to furnish abstract showing merchantable title to the date of administratrices' deed heretofore, to wit, on December 18th, 1928, executed by said vendors and assume the payment of taxes for the year 1928;

"Now, Therefore, in consideration of One Dollar ($ 1.00) in hand paid, receipt whereof is hereby acknowledged, the undersigned, O. P. Herrick, does hereby extend the limit of time for the delivery of abstract of title showing a merchantable title to said premises to the date of said administratrices' deed, until April 30th, 1929.

"The undersigned further expressly agrees that if such abstract showing merchantable title as aforesaid is furnished on or before said date of April 30th, 1929, he shall accept deed subject to the general taxes for the year 1928, payable in 1929, and special assessments and levies which first become a lien subsequent to December 18th, 1928, liability for the payment of which shall not be upon vendors."

On April 29, 1929, the administratrices' deed and an abstract of title were tendered to the appellant. He refused to pay the purchase price because of a shortage in quantity of the tract described in the contract of sale, and because of certain alleged liens against the property and alleged defects in the title to the real estate. On July 22, 1929 the appellant tendered to the appellees the purchase price of $ 20,500.00 and demanded that they comply with the contract. Thereupon, the appellee again tendered the deed and abstract of title to the appellant, but he again refused to pay the purchase price. Then the appellees, acting under order of the probate court, offered to rescind the contract, but appellant refused to rescind, saying "that he had bought the tract of ground described in his contract, and that he was going to stand on the contract, and when we could convey what we had agreed we would convey he would pay the money." The real estate in question abuts upon and lies to the south of Grand Avenue, and abuts upon and lies to the north of the right of way of the Chicago, Milwaukee & St. Paul Railroad Company; the east boundary line, ascertained by a survey, is 472.70 feet in length and the west line is 521.55 feet in length; there is a hedge along the east line of the property; Coggeshall owns the property adjoining it on the west; beginning at approximately the northwest corner of the tract in question, is a curb which extends southerly a little east of south; this curb constitutes the east side of the drive way of the neighbor, Coggeshall, the adjoining owner on the west. After a short distance, the curb develops into a retaining wall four or five feet in height. The length of the curb...