Leach v. Hall

• Decision Date: 11 October 1895
• Citation: 95 Iowa 611,64 N.W. 790
• Parties: LEACH ET AL. v. HALL ET AL.
• Court: Iowa Supreme Court

95 Iowa 611

64 N.W. 790

LEACH ET AL.

v.HALL ET AL.

Supreme Court of Iowa.

Oct. 11, 1895.

Appeal from district court, Clinton county; C. M. Waterman, Judge.

Action of right to recover the possession of certain lots in the city of Clinton. Defendant Hall filed an answer and cross petition, in which he claimed to be the owner of the property, and alternately of an undivided interest therein, and asked that, in the event he be found a cotenant with plaintiffs, partition be made of the lots, and for other relief. The Germania Building Association filed a separate answer and cross petition, asking the foreclosure of a certain mortgage held by it upon the property in controversy, executed by one T. W. Hall, who, it claims, was the owner of the property at the time the mortgage was given. The cause was tried to the court, and a decree passed finding: That plaintiffs, Horace Leach and Deforace Leach, are the owners of an undivided two-thirds of the property in controversy, subject to certain offsets for incumbrances removed and taxes paid by the grantors of defendant T. W. Hall. That defendant T. W. Hall is the owner of an undivided one-third of the lots, and that he is entitled to contribution for taxes paid by him and Emma O. Leach, one of his grantors, with interest thereon at 6 per cent. from date of payment, and that he is also entitled to contribution for certain mortgage indebtedness paid by said Emma O. Leach, with interest at 6 per cent. from time of payment; the total amount of taxes and mortgage incumbrance being the sum of $191.03. That plaintiffs are entitled to an offset or recoupment against the said $191.03 of the rental value of their two-thirds interest in said real estate from the date of filing their petition, amounting to the sum of $93.34, leaving a balance due defendant T. W. Hall from plaintiffs of $97.69, which was declared to be a lien on plaintiffs' two-thirds interest in and to the premises. That there was due the Germania Building Association the sum of $573.84, which was declared to be a lien upon the interest of T. W. Hall, prior to the lien and claims of any of the parties. That the premises be sold, and the proceeds applied--First in satisfaction of the costs; second, that plaintiffs receive two-thirds of the remainder, less the sum of $97.69 due from them to T. W. Hall; and the remainder paid to the Germania Building Association. A general execution was also ordered in favor of the building association against T. W. Hall for any balance which might remain unsatisfied. Defendants Hall and the building association appeal. Modified.Walliker Bros. and McCoy Bros., for appellants.

Calvin H. George, for appellees.

DEEMER, J.

It appears from the testimony that one Tertius Holly Leach was married to one Orica Fanton, in the state of Vermont, in the year 1834, and that plaintiffs, Horace Leach and Deforace Leach, are the sole and only issue of that marriage. In the year 1837, and shortly after the birth of these children, Tertius Leach deserted his wife, Orica, and some time in that year married a woman known as Orinda Leach, in the state of New York. Three children were the result of this union,--Henry, who died many years prior to the death of his father; Charles, who was a soldier in the late war, and who returned to Vermont, sick with consumption, and who afterwards went to Philadelphia in quest of health, and was last heard from six years and nine months prior to the death of his father; and Emma O. Leach, who lives with her mother in the city of Clinton. Some time after the birth of these children, the issue of the second marriage, Tertius Leach abandoned Orinda while they were living in Vermont, and went to the Pacific coast, where he remained for several years; he next being heard of by any of his relatives at Clinton about the year 1866. He came to Clinton with a woman whom he represented as his wife, known as Malissa Leach. Shortly after coming to Clinton, and in the year 1878, he purchased the lots in controversy. Shortly after the purchase of these lots, the second wife, Orinda, accompanied by her daughter, Emma, came to Clinton, and from that time up to the death of the elder Holly, which occurred on September 19, 1881, Orinda and he lived together as husband and wife. After the death of Tertius Leach, Orinda and her daughter, Emma, continued to use and occupy the premises in controversy, executed mortgages thereon, and claimed to be the owners thereof, and on the 20th day of June, 1890, they conveyed the same by warranty deed to defendant T. W. Hall. Hall thereafter executed a first mortgage thereon to the Germania Building Association, and a second one to George Hayward & Sons, who are also defendants in this suit. June 24, 1890, Orica, the first wife of Tertius Holly, died intestate, leaving as her only heirs the plaintiffs herein. Tertius Holly, during his lifetime, at all times recognized the children of Orinda--Henry, Charles, and Emma--as his, and they have the same right to inherit from him as if born in lawful wedlock. After the purchase of the property, Leach executed two mortgages thereon,--one for $60, to one Wadleigh, in the year 1878; and another, for $48.75, to one Warner, in the year 1880. These mortgages drew interest at the rate of 10 per cent. from date. The first of these mortgages was paid by Emma Leach in the year 1883, and the second in the year 1882, she taking an assignment thereof, which was duly recorded. Afterwards she, as assignee, released these mortgages for the purpose of perfecting the title. Emma Leach and her mother paid all taxes assessed against the property after the death of Tertius. The plaintiffs claim to be the owners of said property by reason of being the legal and only heirs at law of Tertius Holly Leach and Orica Leach. The defendants deny their heirship, claim that Tertius Leach was divorced from his first wife, and further allege that the property in controversy was held in trust by Tertius Leach for Orinda Leach, she having furnished him the money with which the property was purchased before he left Vermont for the West. Defendants further claim a lien upon the premises for the amount of the mortgages paid by Emma Leach, with 10 per cent. interest thereon to the date of trial, insisting that they are subrogated to the rights of the original mortgagees. They also ask that the amount of taxes paid by them be established as a lien upon the premises. Plaintiffs, in reply, allege that the defendants and their grantors have had the possession and occupancy of the premises and the rents and profits thereof ever since the death of the elder Leach; that they have ousted plaintiffs from the possession of the property; and that they are entitled to have the rental value offset as against the amount allowed defendants for incumbrances or taxes paid by them, and any balance that may remain over and above these amounts established as a lien in their favor on the defendants' interest in the lands. They claim they are entitled to seven-ninths interest in and to the property in controversy, and that defendants are entitled to a two-ninths interest therein, subject to plaintiffs' claim for rents and profits.

The first question to be considered is, what interest, if any, have the plaintiffs in and to these lots? It is conceded by counsel for appellants that Orica Leach was at one time the lawfully wedded wife of T. H. Leach, but they insist that under the facts of this case the presumption arises that these parties were divorced. It appeared from the testimony that after the second marriage, which was in 1838, T. H. Leach and Orinda Leach lived in the town where Orica Leach was living, until T. H. Leach left for the West, and that Orica never made any claim that T. H. Leach was her husband. Orica was introduced to the second Mrs. Leach, but nothing was said about her relations to T. H. Leach. Children were born as a result of this second marriage, and they were recognized as legitimate by the first wife. Emma Leach, a child of the second marriage, was introduced to the first wife, and they frequently met thereafter. At the time of the second marriage, Leach claimed to have been divorced from his first wife; but there is no testimony in the record, other than presumptions, as to a divorce having been granted. Neither is there any direct testimony tending to show that Orica Leach did not obtain a divorce, except the presumption that the marriage relation once shown is presumed to continue. We think these facts bring the case within the rule announced in the case of Blanchard v. Lambert, 43 Iowa, 228. The law presumes that this second marriage was lawful, and not criminal, and that either Leach or his first wife had obtained a divorce before the second marriage. It is true, as said in Ellis v. Ellis, 58 Iowa, 730, 13 N. W. 65, that “there must be something, based upon the acts and conduct of both parties,...