Kibby v. Cold

• Decision Date: 06 June 1884
• Citation: 19 N.W. 824,63 Iowa 663
• Parties: KIBBY ET AL v. COLD ET AL
• Court: Iowa Supreme Court

19 N.W. 824

63 Iowa 663

KIBBY ET AL v. COLD ET AL

Supreme Court of Iowa, Des Moines

June 6, 1884

Appeal from Shelby District Court.

ACTION in chancery, wherein plaintiffs claim that certain real estate, the title of which is in one of the defendants, is in law held in trust for them, and ask a decree so declaring, as well as requiring a conveyance of the property to them, and an accounting for the rents. The relief sought by plaintiffs was allowed by the decree of the district court, from which defendants appeal.

AFFIRMED.

Smith & Cullison and D. S. Irwin, for appellants.

Platt Wicks and Macy & Gammon, for appellees.

OPINION

BECK J.

I.

The plaintiffs are the heirs of George Kibby, deceased, who, they allege in their petition, entered into a written contract with the Western Town Lot Company to purchase a lot in the town of Irwin. By the terms of the contract, an installment of the purchase-money was to be paid upon the execution of the contract, and upon the payment of other installments and the erection of a building upon the lot, a deed was to be executed for the property. After a certain installment was paid and the building was erected, Kibby died. The contract for the purchase of the lot fell into the hands of defendants, or some one of them, who, it is alleged fraudulently caused an assignment thereof to be forged transferring the contract to C. J. Kimball, one of the defendants. Under this assignment, a deed was procured to the defendant just named, executed by the Town Lot Company.

The defendants claim that W. P. Kimball, one of their number, made the contract for the purchase of the lot in the name of one of the plaintiffs, a son of George Kibby, and bearing the same name, and that the assignment of the contract was made by him. They claim that the payments provided by the contract were made by this defendant, or one of the other defendants, to whom the deed was made by the Town Lot Company. The plaintiffs admit that all the payments had not been made by their ancestor before his death, but they tender payment of the amount he should have paid.

II. The controlling question in the case is one of fact. It is this Was the contract and purchase of the lot made by W. P. Kimball in his own right, or were they made by or for George Kibby, deceased? The evidence is conflicting. W. P. Kimball testifies positively in support of his theory of the case, and is supported by several witnesses. The plaintiff, George Kibby, claims positively that the land was purchased in his name as testified by Kimball, and positively denies that he executed the assignment on the...