Joneson v. Joneson

• Decision Date: 03 May 1960
• Docket Number: No. 49960,49960
• Parties: Helen Louise JONESON Appellee-Cross Appellant, v. George Alan JONESON, Defendant, Carl Edward Joneson, Appellant-Cross Appellee, and Don Rhoden, Sheriff of Mills County, Iowa, and Sears-Roebuck & Company, Defendants.
• Court: Iowa Supreme Court

Page 911

102 N.W.2d 911

251 Iowa 825

Helen Louise JONESON Appellee-Cross Appellant, v. George Alan JONESON, Defendant Carl Edward Joneson, Appellant-Cross Appellee and Don Rhoden, Sheriff of Mills County, Iowa, and Sears-Roebuck & Company, Defendants.

No. 49960.

Supreme Court of Iowa.

May 3, 1960.

Cook & Drake, Glenwood, for appellant-cross appellee.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee-cross appellant. GARRETT, Justice.

Helen Louise Joneson, appellee, and George Alan Joneson were married in October, 1955. It was her second and his third marriage. In 1954 and while living with his second wife, Bernice, George bought an acre of unplatted land in Mills County on which a country school house was located. In order to purchase this property and convert it into a habitable dwelling, George, in 1954 borrowed of his father, Carl Edward Joneson, hereinafter referred to as appellant, fifty dollars to make the down payment and later on October 28, 1954 borrowed $1,150 to pay the balance of the purchase price. There is evidence that on December 1, 1954 George borrowed of his father $350 to pay the carpenter and material bills in connection with remodeling the school house. The two last items were evidenced by checks from the father to his son.

Exhibit 15, a receipt in appellant's hand writing for $500 signed by G. A. Joneson and bearing date January 12, 1955 recites: 'Received from C. E. Joneson Five Hundred dollars ($500 00) for carpenters wages and building materials.'

From the record we must find that the amounts shown were received by George from his father before the premises were occupied by George and his wife, Bernice, as their homestead. Appellant testified, 'Q. Do you know from your own knowledge and information when Alan and his then wife, Bernice, moved in and stayed regularly in this premises? Mr. Peterson: That's immaterial. A. Well, they was in and out of there. They did make their home in the latter part of January, after the work was all completed.'

George Alan Joneson testified regarding Exhibit 15. 'A. Yes, that is a receipt I gave my father when he gave me $500 in cash, so I gave him a receipt for it. Q. What was done with this $500? A. That was used to pay for the building material and some of the plumbing. * * * Q. Now do you recall when you and Bernice first started regularly living out there? A. The latter part of January. * * * Bernice and I were residing in the homestead on February 15, 1955, and had been for about a month.' This evidence was not controverted.

Appellant testified: 'Exhibit 14 is a note to me from my son, dated February 15, 1955 for $2,050. which was due me.' George, recalled, testified: 'Q. Did your father, C. E. Joneson, ever make demand of you for the payment of the note in the amount of $2,050.? Mr. Peterson: That's immaterial. A. Yes, he did, twice. The first of January of '56 and again in April of '56.'

On April 23, 1956 George drove away in his truck leaving plaintiff-appellee in a destitute condition. In October 1956 she filed for a divorce, alimony and attorney's fees. She also filed a criminal charge of desertion and caused the arrest of her husband in Missouri. On the trial of her divorce action the court found she failed to prove cruelty as contemplated in the divorce statutes and denied her any relief. On appeal to this court the judgment was reversed 'and the cause remanded for judgment awarding plaintiff a divorce, alimony, attorney's fees, costs, etc., in the trial court, in such form and amounts as the trial court may determine is proper.' Joneson v. Joneson, 249 Iowa 343, 86 N.W.2d 877, 881. Pursuant to mandate of the Supreme Court the trial court on January 30, 1958 granted plaintiff a divorce, $750 permanent alimony, $625 attorneys' fees, $337.10 court costs and $165 unpaid temporary alimony, the total being $1,877.10. That amount was established as a lien upon the homestead which was described in plaintiff's petition filed October 5, 1956.

On March 13, 1957 George Alan Joneson executed and delivered to his father, Carl Edward Joneson, a confession of judgment for $2,311.24 and costs. It was filed, execution issued and levy was made on the same day. The homestead was sold at sheriff's sale on April 12, 1957 to Carl Edward Joneson for the full amount of the execution and certificate of sale was issued to him. The sheriff failed to plat the homestead.

On March 22, 1958 Helen Louise Joneson brought this action seeking to have said sale, certificate and judgment cancelled and held for naught. The trial court established a first lien in favor of appellant in the amount of $1,200 and 5% interest thereon from November 1, 1954, that representing the purchase price of the property, and established appellee's lien on said homestead in the amount of $1,877.10 subject only to appellant's prior lien. From the judgment entered Carl Edward Joneson appealed and Helen Louise Joneson cross-appealed.

I. Appellant first contends the homestead was subject to execution for the full amount of his judgment for the reason that it represents indebtedness contracted prior to the occupancy of the homestead. On the record we are constrained to hold that the principal amount of said note represents money advanced to the son and used by him in the acquisition and construction of said homestead prior to its occupancy as such.

Section 561.21, Code 1958, I.C.A., provides: 'Debts for which homestead liable. The homestead may be sold to satisfy debts of each of the following classes: 1. Those contracted prior to its acquisition, but then only to satisfy a deficiency remaining after exhausting the other property of the debtor, liable to execution. * * * 3. Those incurred for work done or material furnished exclusively for the improvement of the homestead.'

None of appellant's claim is based on work done or material furnished by him for the improvement of the homestead so it must be said sub-section 3 has no application here. There is more than an inference from the record George Alan Joneson had no other property liable to execution.

II. As to the priority of liens appellant's judgment became a lien on March 13, 1957. Appellee's judgment lien was entered on or about January 30, 1958. On this issue appellant must prevail unless the lis pendens statute subordinates his rights to those of appellee. No attachment is involved. Section 624.24, Code 1958, I.C.A., provides: '* * * the lien shall attach from the date of such entry of judgment.' Andrew v. Winegarden, 205 Iowa 1180, 1184, 1185, 219 N.W. 326; James v. Weisman, 161 Iowa 488, 143 N.W. 428. Appellee relies upon the lis pendens statutes, Section 617.10 which, so far as material here provides: 'When a petition affecting real estate is filed, the clerk of the district court where filed shall forthwith index same in an index book to be provided therefor, under the tract number which describes the property, * * *' and Section 617.11: 'When so indexed said action shall be considered pending so as to charge all third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof as against the plaintiff's rights.'

A divorce action may constitute lis pendens where specific property is described and sought to be charged with payment of alimony. 54 C.J.S. Lis Pendens § 11, page 578. Graham v. Pepple, 129 Kan. 735, 284 P. 394; Rumsey v. Rumsey, 150 Kan. 49, 90 P.2d 1093.

The record is barren of any showing of compliance or noncompliance with said sections, but, the presumption is that public officers perform their duties and since appellant made no showing to the contrary we shall assume the clerk of the district court did what the statutes required of him and indexed appellee's divorce action in proper manner in the appropriate index book. In her petition for divorce she described the land involved and asked that the title be quieted in her and for alimony.

'While it has been held that compliance with the statutes as to notice of pendency of an action is not presumed and must be proved, it has also been held that, in the absence of any allegation that a lis pendens was not filed, there is a presumption that a lis pendens was filed pursuant to statute.' 54 C.J.S. Lis Pendens § 58, page 630.

Appellee claims her action, pending when appellant's judgment was entered, gives her priority over appellant's judgment. Had no divorce action been pending when appellant's judgment lien attached, there would be no question about his right to subject the homestead to payment of the judgment, assuming it was proven it represented indebtedness incurred prior to the acquisition of the homestead.

'Under the statute, Code, § 10155, the homestead is, of course, liable for the debts antedating its acquisition, and when this debt was reduced to judgment on April 3, 1933, such judgment became a lien upon all the interest of Oscar Hofmann, including any homestead right which he might have in the real estate. Wertz v. Merritt, 74 Iowa 684, 39 N.W. 103; Therme v. Bethenoid, 106 Iowa 697, 77 N.W. 497; Solnar v. Solnar, 205 Iowa 701, 216 N.W. 288; James v. Weisman, 161 Iowa 488, 143 N.W. 428.' Kramer v. Hofmann, 218 Iowa 1269, 257 N.W. 361, 364.

While the rule just mentioned is quite clear it cannot be disputed that appellee, from the...