Lawse v. Glaha
| Decision Date | 08 May 1962 |
| Docket Number | No. 50504,50504 |
| Citation | 114 N.W.2d 900,253 Iowa 1040 |
| Parties | T. A. LAWSE, Trustee, Appellant, v. Henry GLAHA, also known as Henry Glahe, Appellee. |
| Court | Iowa Supreme Court |
Pollard, Lawse & Deitchler, Fort Madison, for appellant.
Joseph L. Phelan, Fort Madison, for appellee.
On March 9, 1955, plaintiff, as record title holder, filed his petition asking that title to two lots in Block 1080 in the City of Fort Madison, Iowa, be quieted in him. Defendant answered in two divisions, the first denying plaintiff's claim of ownership and title and the second by counterclaim, asking that title be quieted in defendant. Both divisions assert defendant's adverse possession of the lots. An amendment to answer alleges laches on the part of plaintiff in asserting his claim.
The trial court found defendant Henry Glaha obtained title to the lots by adverse possession and a decree was entered quieting his title. From this decree the plaintiff appeals. We do not agree with the trial court.
At the time of his death in 1904 Ferdinand Glahe owned several lots in Block 1080 in Fort Madison and on one was the family home. In his will he provided certain lots go to his various sons after the death of his wife, Dina Glahe. The full title to the lots described in this action was inherited by George Glahe after the death of Dina in 1928. A short time after his father's death, George Glahe left Iowa and became a resident of New Mexico. He and his wife, Annas, had two children, one having died in infancy, the other is now Margaret Burnadine Fish, also known as Mrs. Creston E. Fish. She is the sole beneficiary of the estates of George Glahe, who died March 10, 1945, and Annas Glahe, who died July 11, 1946, and was the equitable owner of the two lots in controversy. On March 7, 1955, together with her husband, Margaret Burnadine Fish conveyed the lots unto T. A. Lawse, as trustee, for Margaret Burnadine Fish. It is undisputed the record title was in the plaintiff at the time this case was submitted to the trial court.
Defendant Henry Glahe, often referred to as Glaha, also inherited real estate from his father, Ferdinand Glaha, including the home property and a lot east of it. One of the lots in dispute is directly west and the other is southeast of the home property.
For many years prior to his death Henry lived in the home property with his mother and received money from his brother George. Henry estimated the amount to be from $10.00 to $15.00 per month. Mrs. Fish testified her father usually sent $25.00 per month. No such payments were made after the death of the mother in 1928. Prior to 1929 and from 1929 to 1954, Henry Glahe paid the real estate tax on the two lots together with the home property and other real estate in the estate. The County Treasurer listed it all as 'Ferdinand Glaha estate', with 'Henry Glahe' in parentheses after 'estate'. The total taxes paid on all the real estate listed as 'Ferdinand Glaha estate' varied from $51.00 in 1929 to $69.84 in 1954. Paving assessments were levied against the real estate as a whole and paid by Henry Glahe during 1928, 1930, 1932, 1933 and 1934 and also during the years 1943, 1944, 1945 and 1946. There is no evidence of the separate amounts levied against the two lots. In 1954 the tax list was changed to show Mrs. Fish as owner of the two lots and the taxes thereafter were paid by plaintiff.
For many years Henry used the corner lot for gardening. He also received billboard space rental therefrom for several years. No improvements were made on the lots at any time.
After the death of her father and mother, Mrs. Fish considered the lots hers and did not object to her Uncle Henry's use of them for gardening. She testified she thought his use of the lots and the income would offset the taxes he paid.
On April 1, 1954, Mr. Phelan, as attorney for defendant, wrote a letter requesting Mrs. Fish to sign an enclosed quit claim deed and stated in part:
On April 3, 1954, Mrs. Fish answered the letter wherein she stated her father had sent money to Henry and expressed her belief her father had been hopeful the various lots might be sold in a block and expressed her willingness to start paying the real estate tax.
On April 12, 1954, Mr. Phelan again wrote Mrs. Fish wherein he expressed his opinion that Henry Glaha had a claim for the taxes paid and among other statements wrote:
'As you are the sole heir of George Glaha, these lots belong to you.'
No reference is made in these letters to any claimed gift but in his counterclaim defendant alleged George Glaha in July, 1900, conveyed the lots to defendant as a gift.
Helen Critchfield and defendant himself were the only witnesses for defendant. Helen Critchfield testified she had been Henry Glahe's housekeeper since 1945; and that she so acted for a year and two months starting in 1930; she was working for nothing and using her pension money for groceries for Henry and herself as he had been good enough to let her move into his house when she could not find one. Her testimony establishes a close friendship with defendant and shows her interest in the outcome of this case.
Mrs. Critchfield testified she overheard a conversation between George and Henry Glahe at the home place. It is as follows:
'I heard them talking about * * * Henry says to George, 'What are you going to do about these lots' and George said 'I told you I didn't want them. You can have them. Do as you please with them.''
She further testified:
'Then Henry says, 'All right * * * then I will pay the taxes on them.''
Her testimony was that this conversation took place in 1933 and George had visited also in 1931 and 1946. When advised of the date of George's death she changed the date of the last visitation to 1945.
Defendant on direct examination was asked the following questions by his attorney and made the following answers.
'Q. What has been your understanding with respect to the ownership of these lots since George left them?
A. Never been a word said about it; never * * * I paid the taxes on the Ferdinand Glahe estate; that was all of it. I paid the taxes since dad died.
While still under direct examination, Henry Glahe testified:
On cross examination he testified the last time he remembered seeing his brother George was in 1928.
Subject to the objection the witness was not competent to testify to a transaction with a person since deceased under Section 622.4, Iowa Code, I.C.A. defendant testified he received a letter from George in which George said
No attempt was made to explain what became of the alleged letter from George nor to establish any date of its receipt.
The trial court in the findings of facts considered the evidence regarding the alleged letter and without expressly waiving his objection, appellant's attorney for the purpose of argument refers to defendant's testimony last quoted. We think the evidence should be given little, if any, weight.
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