Killmer v. Wuchner

• Decision Date: 08 May 1890
• Citation: 79 Iowa 722,45 N.W. 299
• Parties: KILLMER v. WUCHNER ET AL.
• Court: Iowa Supreme Court

79 Iowa 722

45 N.W. 299

KILLMER

v.WUCHNER ET AL.

Supreme Court of Iowa.

May 8, 1890.

Appeal from district court, Keokuk county; DAVID RYAN, Judge.

Action in equity for the partition of real estate The district court found that the premises involved in the action could not be partitioned, and decreed a sale thereof, and a division of the proceeds. The defendants, John J. and George G. Wuchner, appeal.Mackey & Stockman, for appellants.

C. G. Johnston, for appellee.

ROBINSON, J.

The title to the land in question was considered and determined in Killmer v. Wuchner, 74 Iowa, 360, 37 N. W. Rep. 778. This action was brought for a partition of the land. Plaintiff asks that, in determining the respective interests of the parties to this action, the improvements upon the land be considered, and that an allowance therefor be duly made. Before this action was commenced plaintiff sold, and agreed in writing to convey, the premises in controversy to John Beinke; and he is made a party defendant. The appellants ask for the partition of the real estate, but insist that their interest is not affected by the improvements. The defendant Beinke admits the contract of purchase with plaintiff, and avers that it is an entirety, and that he does not desire to take only a part of the land. He also alleges that he has placed thereon improvements to the value of $675, and asks that in case a sale is ordered the plaintiff's share of the proceeds thereof be paid into court until an adjustment is effected between himself and the plaintiff. To the answer of Beinke, appellants plead that the improvements for which he claims were made without their knowledge or consent, and with knowledge of their rights. The court below found that each appellant was the owner of an undivided 4-25 of the premises in controversy, including the improvements; subject to a life-estate of Dorotha Strohman, now held by Beinke, and that Beinke was the owner of an undivided 17-25 of the premises, including improvements and the life-estate aforesaid. It was ordered that the premises be sold, and 17-25 of the proceeds be paid to Beinke, and that the remainder be invested under the direction of the court; that the interest thereof be paid to Beinke during the life of Dorotha Strohman, and at her death that such remainder should be paid to appellants.

1. Appellants contend that the court erred in making an allowance against them for improvements made by appellee. Numerous authorities are cited which hold, in effect, that a tenant for life cannot charge the inheritance or remainder estate with the cost or value of improvements; and for the purposes of this case that may be conceded to be the general rule. The question we are required to determine is whether the facts of this case make it an exception to that rule. The land in controversy was purchased from the general government by the father of appellants, who died testate, and a nonresident of Iowa, in the year 1854. He devised to each of the appellants an undivided one-third of the land in question, subject to an estate in the mother. Killmer v. Wuchner, 74 Iowa, 360, 37 N. W. Rep. 778. By a decree of the Keokuk circuit court rendered December 31, 1886, from which the appellants in this case did not appeal, that estate was determined to be a life-estate in the shares of appellant, and an undivided one-third in fee-simple. In the year 1862 the grantor of plaintiff obtained from the step-father of appellants, who were then minors, a deed which recited the step-father was their guardian, and which purported to convey the land. It was insufficient as a conveyance, but the evidence satisfies us that it was received in good faith, and relied upon and treated as effectual to pass the...