Klingensmith v. Klingensmith
| Decision Date | 22 November 1921 |
| Docket Number | 33995 |
| Citation | 185 N.W. 75,193 Iowa 350 |
| Parties | EDWARD KLINGENSMITH et al., Appellees, v. GEORGE KLINGENSMITH et al., Appellants; J. E. HAMILTON, Intervener, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 11, 1922.
Appeal from Madison District Court.--H. S. DUGAN, Judge.
ACTION in equity to have canceled quitclaim deeds executed by plaintiff, conveying his expectant interest as heir in certain real estate, and to have same construed as security for moneys advanced by defendants on behalf of plaintiff. Decree entered finding the equities in favor of plaintiff.
Affirmed.
Sam C Smith and W. T. Guiher, for appellants.
J. A Merritt and W. S. Cooper, for appellees.
DE GRAFF, J.
Samuel Klingensmith died intestate June 12, 1917 seized of certain Iowa real estate of the value of about $ 28,000, and personal property of the value of about $ 2,500. His heirs at law are Edward Klingensmith plaintiff and Geo. Klingensmith, Victoria Klingensmith, Melissa Bonham and Sarah Smith defendants herein.
The senior Klingensmith at the time of his death was a widower and the parties to this action are his children. It appears that prior to his father's death the son Edward had borrowed from the local banks small sums of money and his father had signed notes as surety with him. In June 1915 the various loans aggregated about $ 900. The banks holding these notes were insisting on payment and this fact seemed to worry the senior Klingensmith who was then about 84 years of age. Edward possessed little of this world's goods, and as the father was not desirous of placing a mortgage on his farm, it was talked over and orally agreed and understood between Edward and the other children that they would advance a loan sufficient to pay off Edward's indebtedness, and in consideration thereof Edward would quitclaim to them his expectant interest as heir in his father's estate. This was done.
It is the contention of the plaintiff Edward that the quitclaim deed so executed was executed and delivered upon the express agreement and understanding that after the father departed this life that his undivided one-fifth share of the estate should be held as security for the payment of the advances so made by the other children in liquidating his indebtedness.
It is the contention of the defendant-grantees that Edward intended to convey absolutely all of his title and interest in his father's estate, and they specifically deny that the grantor Edward has at this time any right title or interest as an heir at law in the estate of the decedent Samuel Klingensmith.
It is well established that a deed intended to be a mortgage creates an equitable mortgage. Fort v. Colby, 165 Iowa 95, 144 N.W. 393; McGuire v. Halloran, 182 Iowa 209, 160 N.W. 363. This principle is predicated on the maxim that equity regards that as done which ought to be done. It is primarily a question of intent and this intent is found in the nature of the transaction and what was said and done at the time and immediately prior to the execution of the instrument in question. A court of equity does not look merely at the form of the thing, but if necessary will read into the instrument an implied defeasance clause.
Prior to the execution of the quitclaim deed in the first instance Edward, George, Melissa and Victoria talked over the matter of the payment of the indebtedness owing by Edward. Without stating in detail this conversation it was finally agreed among them that each would contribute a certain amount for this purpose. This apparently was approved by the father. Edward testified that at that time he told his brother and sisters; "I will secure you with my interest in the estate." Subsequently George went to the Citizens Bank and had the deed prepared. Later Melissa, Edward and his wife called at the bank and the deed was signed by Edward and his wife. Edward states that he did not examine the paper further than "to see where to sign his name, supposing that it was a paper providing to give them security." Edward's wife on that occasion had one eye bandaged and the other badly inflamed. She could scarcely see where to sign her name and did not read the deed. About a week thereafter Melissa spoke to the other sister, Sarah Smith, who had not been a party to these negotiations, and her name was not included as one of the grantees in the deed. After discussing the proposition Sarah with her husband went to the bank and took up notes in the sum of $ 271.83, the husbands of Melissa and Sarah respectively contributing one half.
In the execution of the first quitclaim deed Edward conveyed only an interest in an expectant estate. He then had simply a contingent right of future enjoyment. He had nothing vested in him, nothing that he could convey. His father had full legal title to the farm, and he only could vest an interest in Edward which could be conveyed by him. This the father did not do.
Appellants have injected into this case what is termed a "family settlement" and rely upon Jones v. Jones, 46 Iowa 466. The Jones case is clearly distinguishable from the instant case. Furthermore the question of family settlement was not pleaded by the defendants until eight days after the case was tried and submitted. Waiving this matter of pleading there is nothing in the record to establish a family settlement. The whole transaction focusing on the 23d day of June 1915 had to do with a question of raising money sufficient to lift Ed's notes at two banks in Lorimor. Furthermore the ancestor at that...
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