Kramer v. Hofmann

• Decision Date: 20 November 1934
• Docket Number: No. 42632.,42632.
• Citation: 257 N.W. 361,218 Iowa 1269
• Parties: KRAMER et al. v. HOFMANN et al. WILLIAMSON et al. v. SAME.
• Court: Iowa Supreme Court

218 Iowa 1269

257 N.W. 361

KRAMER et al.

v.HOFMANN et al.

WILLIAMSON et al.

v.SAME.

No. 42632.

Supreme Court of Iowa.

Nov. 20, 1934.

Appeal from District Court, Adair County; Norman R. Hays, Judge.

Appeals from the orders, decree, and judgment of the trial court in an action to partition real estate and in an action of forcible entry and detainer. The opinion states the facts.

Affirmed.

Wilson & Kellam, of Greenfield, for appellants.

Musmaker & Musmaker, of Greenfield, and Carl P. Knox, of Stuart, for appellees.

DONEGAN, Justice.

This appeal involves two actions, one for partition of real estate owned by plaintiffs and certain of the defendants, and the other an action for forcible entry and detainer against the defendants Oscar Hofmann and Lena Hofmann. To a better understanding of the issues involved, it is necessary that we set forth a statement of the facts.

Niclos Hofmann and Barbara Hofmann were the parents of nine children, to wit, Emma Hofmann Robson, now deceased, the plaintiffs Lizzie Kramer and Lucy Ferber, and the defendants Oscar Hofmann, Frank Hofmann, Herman Hofmann, Will Hofmann, John Hofmann, and Charles Hofmann. On September 24, 1926, Niclos Hofmann and Barbara Hofmann made a deed of all their real estate consisting of 400 acres of land in Adair county and a lot with house thereon in the town of Greenfield, Iowa, to said nine children, reserving a life estate to the grantors or the survivor of them. Following the execution of said deed, Niclos Hofmann died on October 10, 1926; Emma Hofmann Robson, who was then divorced, died intestate without issue on November 23, 1929; and Barbara Hofmann died October 13, 1932. Following the death of Niclos Hofmann, the surviving spouse and life tenant, Barbara Hofmann, was placed under guardianship, and W. R. Goodman was appointed her guardian. At the time of the execution of the deed above referred to, the 400 acres of land was divided into three farms; one farm of 160 acres being rented to the defendant Oscar Hofmann and family, and the other two farms being rented separately to Herman Hofmann and John Hofmann.

Following the death of Barbara Hofmann, W. R. Goodman was appointed administrator of her estate, and on February 20, 1933, as such administrator, he commenced an action in the district court of Adair county against the defendant Oscar Hofmann in six counts for the balances due on four separate notes given for rent of the farm occupied by Oscar Hofmann, and on oral leases of said premises for the years ending March 1, 1932, and March 1, 1933. The defendant Oscar Hofmann filed answer admitting certain and denying other allegations of the petition, and on April 3, 1933, a compromise was reached under which the claims alleged in counts 5 and 6 of the petition, based on the oral leases, were withdrawn and judgment was entered against Oscar Hofmann for the balance due on the four promissory notes in the sum of $3,068, with interest, attorney's fees, and costs. After the action above referred to had been commenced, the defendant, Oscar Hofmann, executed a note for $250 to Frank B. Wilson, and also executed a second note for $1,500 to said Wilson which was secured by a mortgage on Hofmann's interest in all of the land. Thereafter, on March 11, 1933, while the action brought by the administrator was pending and before judgment therein, the defendant Oscar Hofmann confessed judgment in favor of Wilson on the $250 note and on the same day the mortgage securing the note for $1,500 was filed for record.

On August 3, 1933, the instant action in partition was commenced. The petition after alleging the devolution of the title and ownership by the eight children, concerning which there is no dispute, also alleged the suit and judgment of the administrator, Goodman; that the administrator holds notes against the defendants, Herman Hofmann and Frank Hofmann; that, if said administrator is required to proceed to collect the judgment against Oscar Hofmann under execution and to collect said notes of Herman Hofmann and Frank Hofmann, it will necessitate the retention of the administrator for an indefinite length of time; and that it would be for the best interests of all parties that the court determine the sums of money that have been advanced to Frank Hofmann, Herman Hofmann, and Oscar Hofmann, and order that, on the sale of the property, those indebted to the estate be charged for the amount they have received or what they owe the estate. The defendants Oscar Hofmann and Lena Hofmann, his wife, filed separate answers in which they denied that the land could not be partitioned in kind, and claimed the 40 acres on which they resided as a homestead. The defendant Wilson answered alleging that the confession of judgment for $250 and the mortgage for $1,500 are superior to the judgment obtained by the administrator, and that said Oscar Hofmann is entitled to a homestead as claimed by him. The defendant Goodman, administrator, answered and consented that the notes against Frank Hofmann and Herman Hofmann and the judgment against Oscar Hofmann held by him be adjusted in the partition action.

The action proceeded to trial, and on November 3, 1933, the court's ruling was filed holding that the defendant Oscar Hofmann occupied the said premises under a lease and not as a tenant in common until the death of his mother, that he has no homestead rights as against his cotenants or as against the claim of Barbara Hofmann, his mother, or her administrator, for rents due, and that the lien of the judgment of the administrator for rents attached to all his interest in the real estate. On November 25, 1933, the court filed its decree holding that the judgment for $250 and the mortgage held by the defendant Wilson and the judgment for $3,068 held by the administrator were liens against the share of Oscar Hofmann, and established the judgment of the administrator as a lien against the interest of Oscar Hofmann in all of said real estate, subject only to the liens of Frank B. Wilson under his judgment and mortgage. The decree expressly stated that no finding was made as to the amount of Wilson's mortgage. Such decree appointed appraisers, directed them to make partition in kind if this could be done, and directed that, in making partition, they set off to Oscar Hofmann the portion of the land on which he resided, subject to the liens established against the same, provided this could be done without injury to his cotenants.

On December 9, 1933, the defendant Oscar Hofmann filed a petition in bankruptcy and was adjudged a bankrupt. On the same day the plaintiffs filed a motion for a supplemental decree in which they asked that the decree entered by the court be modified and that the mortgage held by Wilson be declared void as against the real estate. On December 13, 1933, the referees filed their report stating that the real estate could not be partitioned in kind, and on December 14, 1933, the defendant Oscar Hofmann filed an application for a stay alleging his adjudication as a bankrupt. On December 15, 1933, the court took evidence on the plaintiff's motion for a supplemental decree, but no ruling was made on this motion until the 9th day of February, 1934. On January 17, 1934, the trustee in bankruptcy filed his report setting off the 40 acres claimed by Oscar Hofmann to him as a homestead. To this report the administrator filed objections, and on the 9th day of February, 1934, on hearing before the referee, an order was entered approving the report of the referee,but containing provisions to which reference will hereafter be made. On the same day the district court of Adair county filed its ruling in which it overruled Oscar Hofmann's motion for a stay and held that the Wilson mortgage was given to secure a contingent fee of 50 per cent. of whatever amount the firm of Wilson & Kellam should save for the defendant Oscar Hofmann out of his share, that there was a failure of consideration to make such mortgage a valid prior lien, and that a supplemental decree be entered establishing the judgment of the administrator prior to the lien of said mortgage. Following this, the court on February 15, 1934, entered a supplemental decree in conformity with its ruling. On the 14th day of February, 1934, the district court of Adair county entered an order approving the report of the referees. In this order the court found that the real estate could not be partitioned in kind; that it was necessary to sell the same; that it was not advisable under the present status of the litigation to direct an immediate sale at public auction; that the land could not be sold with an agreement to furnish title for March 1, 1934; that it would be for the interest of all persons that the real estate be leased for one year beginning March 1, 1934; and ordered the referees to enter into such leases and authorized them to take such action as they might deem necessary to obtain possession of any of the property. On March 13, 1934, the defendants Oscar Hofmann and Frank B. Wilson filed a motion to revise decree and expunge the portion of the supplemental decree of February 15, 1934, finding that the judgment of the administrator was a lien on all the interest of Oscar Hofmann in all of the real estate, that the Wilson mortgage was without consideration, and establishing the administrator's judgment as prior to such mortgage. This motion was based upon the claims that Oscar Hofmann's homestead was not subject to any lien of the administrator's judgment, that his right of homestead had been adjudicated by the bankruptcy court, and that the debt evidenced by the administrator's judgment was barred by the discharge in bankruptcy. To this motion the plaintiffs filed a resistance. A hearing was had, and the motion to revise and expunge was overruled. The defendants Oscar Hofmann and Lena Hofmann appeal.

We will consider the questions arising out of the partition action and then the questions arising out of...