Langer v. Meservey

• Decision Date: 19 May 1890
• Citation: 80 Iowa 158,45 N.W. 732
• Parties: LANGER v. MESERVEY ET AL.
• Court: Iowa Supreme Court

80 Iowa 158

45 N.W. 732

LANGER

v.MESERVEY ET AL.

Supreme Court of Iowa.

May 19, 1890.

Appeal from district court, Humboldt county; GEORGE H. CARR, Judge.

Action in equity to enjoin a sheriff's sale of certain real estate. There was a decree for the plaintiff. Defendants appeal.Theo. Hawley, for appellant.

ROTHROCK, C. J.

On the 21st day of March, 1877, the defendants, Theodore Hawley and A. C. Meservey, recovered a judgment in the Webster county district court against Victoria Schrameck and Frank Schrameck for some $700. On the 4th day of April, 1883, the plaintiff herein conveyed a lot in Dakota City, Humboldt county, to said Victoria Schrameck. After the conveyance was made, the defendants procured a transcript of said judgment to be filed in the office of the clerk of the district court of Humboldt county, and the judgment was duly docketed therein. An execution was issued for a balance due on the judgment, and a levy of the execution was made upon said lot, and the sheriff of Humboldt county was proceeding to advertise and sell the lot in satisfaction of the balance due on the judgment when this action was commenced to restrain the sale, on the ground that the plaintiff was the real owner of the property. The conveyance from the plaintiff to Victoria Schrameck was made by a deed in the usual form, and the consideration named therein was $1,000. The plaintiff is the mother of said Victoria Schrameck, and it is averred in the petition that no money consideration was paid, or agreed to be paid, for the lot, but that the real consideration was that Victoria Schrameck agreed to furnish a home, and board, clothe, care for, and support the plaintiff during the remainder of her natural life, and that the title was conveyed merely as security for the performance of said contract of maintenance; and that, in case of any failure on the part of Victoria Schrameck to perform the contract, the said property should revert to the plaintiff, and the title thereof should be reconveyed to her. It will be observed from the above facts, which are in substance set out in the petition, that the pleader evidently intended to invoke the rule that a conveyance of real estate may be shown by parol to have been a mere security for the payment of money, or, in other words, that it may be shown by parol to have been intended merely as a mortgage. That such is the law there can be no question. See Trucks v. Lindsey, 18 Iowa, 504;Key v. McCreary, 25 Iowa, 191;Green v. Turner, 38 Iowa, 112; and other cases determined in this court. Another rule equally well established is that the proof to establish that a deed absolute on its face is to be treated as a mortgage should be clear and satisfactory. Corbitt v. Smith, 7 Iowa, 60; Hyatt v. Cochran, 37 Iowa, 609; Sinclair v. Walker, 38 Iowa, 575;Zuver v. Lyons, 40 Iowa, 510;Kibby v. Harsh, 61 Iowa, 196, 16 N. W. Rep. 85;Knight v. McCord, 63 Iowa, 429, 19 N. W. Rep. 310.

The evidence upon which it is sought to vary the terms of the deed consists of the testimony of the plaintiff and the said daughter, and the husband of the daughter. Victoria Schrameck testified as follows: “She [the plaintiff] deeded the property to me with the understanding that I was to keep her so long as she lived, and support her. Catherine Langer controls the property. I have never paid her anything for the property, except as I have stated. She deeded this property to me about five years ago. This contract between mother and me was made before the building was put up or any land purchased. There was no written contract, but that was our understanding. I took possession of the property under this contract. I am now holding the property for Catherine Langer.” In answer to the question whether there was any agreement by which she was to convey the property back to her mother, she testified as follows: “Answer. There was such an agreement. It was...