Lanz v. Schumann
| Decision Date | 27 November 1915 |
| Docket Number | 30430 |
| Citation | 154 N.W. 911,175 Iowa 542 |
| Parties | HATTIE LANZ et al., Appellees, v. A. C. SCHUMANN et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED FRIDAY, APRIL 7, 1916.
Appeal from Jasper District Court.--HENRY SILWOLD, Judge.
Affirmed.
Bray Shiflett & Wilkie, for appellants.
E. S McLaughlin and Ross R. Mowry, for appellees.
THE opinion sufficiently states the case.--Affirmed.
In their original petition, plaintiffs alleged themselves to be the owners in fee simple of certain described real property and that their title in part was acquired by purchase from the heirs of one Herman Lanz, deceased, one of whom was the defendant May Schumann, such purchase being made by written contract signed by said May Schumann and Rosa Stecher; but that by mistake, there was omitted from the contract words expressing an agreement by the sellers that their husbands should unite in the deed of conveyance. They further alleged that defendant A. C. Schumann was present and orally agreed to join in executing a quitclaim deed to plaintiffs; that, relying thereon, plaintiffs made and delivered their promissory note for the agreed purchase price of $ 3,100, and have in all respects kept and performed their part of the agreement. They further alleged that the defendant May Schumann did make a deed as promised, but that A. C. Schumann did not join therein and refuses to do so. Upon the grounds stated, the plaintiffs prayed that their title be quieted against the defendants and that the contract of sale be reformed to correct the alleged mistake. To this pleading, the defendant demurred generally, and the court sustained the demurrer. Plaintiffs thereupon filed an amended and substituted petition, restating practically all the matters contained in the first pleading, except the allegation of mistake in the written contract. It further alleges that plaintiffs purchased from defendants all their interest, vested and contingent, in the described land, and that defendants agreed to execute a quitclaim deed accordingly, and that A. C. Schumann was present, took part in and agreed to all the terms of said contract, which contract was oral, except as to that part thereof embraced in the writing mentioned in the original petition as having been signed by May Schumann and Rosa Stecher only, as grantors. It is further alleged that, in consideration of said agreement, plaintiffs made and delivered to defendants their promissory note for $ 3,100, which note has been sold and transferred to a third party; but the defendant A. C. Schumann refuses to make a conveyance according to promise. Relief is again prayed that plaintiff's title be quieted and confirmed, and for other and general relief. Defendants moved to strike the substituted petition because it stated no other or different cause of action than was set up in the original petition, to which a demurrer had been sustained. The motion having been overruled, defendants demurred generally to the sufficiency of the petition. The demurrer was overruled, and defendants, refusing further to plead, elected to stand upon their demurrer. Decree was then entered finding the truth of the allegations of the petition, and establishing, confirming and quieting the title to the land in the plaintiffs. Defendants appeal.
I. It is argued for appellants that the ruling upon the demurrer to the original petition became the law of the case, and it was therefore error for the trial court to permit the substituted petition to stand and to overrule the demurrer thereto. For several sufficient reasons, the point is not well taken. In the first place, the defendants had once raised the question of the substantial identity of the substituted petition with the original petition, by their motion to strike. The court overruled the motion, thereby, in effect, holding that the second petition was not a mere repleading of the matter stated in the first. Defendants did not elect to stand upon the...
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