Jochimsen v. Johnson

• Decision Date: 19 January 1916
• Docket Number: 30316
• Citation: 156 N.W. 21,173 Iowa 553
• Parties: C. P. JOCHIMSEN, Appellee, v. ANDREW JOHNSON, Appellant
• Court: Iowa Supreme Court

156 N.W. 21

173 Iowa 553

C. P. JOCHIMSEN, Appellee, v. ANDREW JOHNSON, Appellant

No. 30316

Supreme Court of Iowa, Des Moines

January 19, 1916

Appeal from Woodbury District Court.--JOHN F. OLIVER, Judge.

ACTION for a specific performance of a contract to give a certain strip of land as a public alley. Decree for the plaintiff. Defendant appeals.

Affirmed.

C. N Jepson and J. F. Stecker, for appellant.

Edwin J. Stason, for appellee.

GAYNOR J. EVANS, C. J., DEEMER and LADD, JJ., concur.

OPINION

GAYNOR, J.

Action for specific performance of a written contract to give a certain strip of land to be used as an alley. The only substantial defense is that the land from which the alley is to be taken was a part of defendant's homestead, and that the wife did not join in the execution of the contract sought to be enforced. Decree was entered for the plaintiff in the following words:

"DECREED by the court that the plaintiff have judgment against the defendant, Andrew Johnson, for the specific performance of the contract, entered into by and between the plaintiff and the defendant under date of April 29, 1908, and the defendant is hereby adjudged and ordered to convey to the city of Sioux City, an easement of way for a public alley over and along a strip of land 12 feet in width, being the north 12 feet of Lots 2 and 15 in Block 4 of Holman's Addition to Sioux City, Iowa, and extending from Morningside Avenue east to the east line of the alley running north and south through Block 25 of Table's Addition to Sioux City, Iowa projected upon said Lot 2, and it is further ordered that said defendant execute a deed in proper form, properly acknowledge the same and deliver to the clerk of Sioux City, conveying such easement to said city within 30 days of the entry of this decree, or within 30 days of the date of the final determination of this cause in the Supreme Court."

The contract sought to be enforced is in the following words, and was signed by the plaintiff and the defendant, but not by the defendant's wife:

"It is hereby agreed by and between C. P. Jochimsen and Andrew Johnson that in consideration of certain transfers of portions of a lot and other property and the giving of a certain note that C. P. Jochimsen shall give for the purpose of an alley that part of Lot 1 in Block 4 in Holman's Addition that shall lie south of the south end of the alley running north and south through Block 25, Table Addition, or Block One, Rose View Addition, as now platted, and Andrew Johnson agrees to give for an alley a strip of land lying along and being the north part of Lots 2 and 15 in Block 4, Holman's Addition, not less than 12 feet in width and extending from Morningside Avenue on the west to the east line of the alley running north and south through Block 25, Table Addition, projected upon Lot 2 in Block 4 in Holman's Addition. Said Jochimsen shall release to said Johnson all right to that part of the public alley lying east of Lots 14 and 15 in said Block 4 of Holman's Addition and south of the alley to be given by the said Johnson as aforesaid. Said proposed alleys to be made public alleys within one year, and the part of the public alley which Jochimsen is to release to be vacated for the benefit of the said Johnson at the same time, said Johnson to procure the proper consent of the public authorities to vacate the same.

"Dated this April 29th, 1908."

It appears that at the time this contract was entered into, the plaintiff was the owner of Lots 16 and 1 and the defendant was the owner of Lots 15 and 2 and 3 shown upon the plat herewith attached; that plaintiff was at the time occupying as a homestead Lot 2. The alley referred to in the written contract is the alley running east and west between Lots 15 and 2 on the south and Lots 16 and 1 on the north, and is 12 feet wide. For a better understanding of the situation, we set out herewith what is conceded to be a correct plat of the ground covered by the contract and land adjacent thereto.

[SEE PLAT IN ORIGINAL]

The record discloses that, after the making of this contract and on the 19th day of January, 1910, the defendant, with others, filed a petition addressed to the mayor and council of Sioux City, in the following words:

"The undersigned, being the owners of all of the lots and property adjacent to the parts and portions of alleys hereinafter described, respectfully ask that said parts and portions of alleys be vacated, as set forth hereafter. That part of the alley in Block 4, running East from Cecilia Avenue to Morningside Avenue, and that the said part so vacated be turned over to the park commissioners and the city of Sioux City for park purposes; that the alley in the said Block 4 in Holman's Addition running north from the north side of Morningside Avenue to the north line of the said Block 4 in Holman's Addition, and that the part of the alley so vacated be turned over to and become the property of the owners of lots lying adjacent to the property so vacated in such proportions as the property belonging to any owner lying adjacent bears to all the property lying adjacent to such vacated part of the alley; that the part of the alley running east from Cecilia Avenue to Morningside Avenue being situated between Lots 12 and 13 in Block 4 is of no possible use except to the owners of said lots, both of whom join in this petition; that the portion of the alley running north from Morningside Avenue to the north line of said Block 4 is of no possible use except to the owners of the lots lying adjacent to the south part of the said alley, as said alley does not connect on the north with any street or alley, and cannot be used except by owners of property lying immediately adjacent thereto."

This petition was signed by the Sioux City Park Commission, owner of Lot 13 and part of Lots 14 and 15, and by the plaintiff, owner of Lots 12, 1 and 16, and by the defendant, owner of Lots 2 and 3 and part of Lots 14 and 15.

On the 7th day of February, 1910, the city of Sioux City, in pursuance of said petition, executed to the defendant the following instrument of conveyance:

"KNOW ALL MEN BY THESE PRESENTS:--

"That the city of Sioux City, Woodbury County, Iowa, in consideration of one dollar in hand paid by Andrew Johnson of Woodbury County, Iowa, do hereby release, remise and quitclaim unto the said Andrew Johnson, all its right, title and interest in and to the following described premises, situated in the county of Woodbury and state of Iowa, to wit: All that portion of the north and south alley in Block 4 of [173 Iowa 558] Holman's Addition to Sioux City, Iowa, lying between Lots 2 and 3 on the east and Lots 14 and 15 on the west."

On the same day, to wit, February 7, 1910, the city of Sioux City quitclaimed to the plaintiff all its right, title and interest in "that part of the north and south alley in Block 4 of Holman's Addition to Sioux City lying between Lots 1 and 16 in said block".

On the 10th day of June, 1913, the plaintiff and his wife, by warranty deed, conveyed to the city of Sioux City "that part of Lot 1 in Block 4 in Holman's Addition to Sioux City that lies south of the south end of the alley running north and south through Block 25, Table Addition to Sioux City, now a part of said block, the property so conveyed to be used for an alley".

Thus it will be noticed that all the provisions of the contract involved in this suit have been complied with, except that part now sought to be enforced in this action. The plaintiff gave for the purposes of an alley "that part of Lot 1 in Block 4 in Holman's Addition that lies south of the south end of the alley running north and south through Block 25 Table Addition", as required by the terms of the contract in suit. The plaintiff released to Johnson all right to the public alley lying east of Lots 14 and 15 in Block 4, and the city...