Lich v. Lich

• Decision Date: 13 October 1890
• Parties: LICH v. LICH.
• Court: Iowa Supreme Court

81 Iowa 84

46 N.W. 763

LICH

v.LICH.

Supreme Court of Iowa.

Oct. 13, 1890.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

The defendant holds the legal title to a farm in Des Moines county, consisting of 220 acres. The plaintiff, who is the son of the defendant, has been in the possession of part of the farm for a number of years. The defendant commenced an action of forcible detainer against the son to obtain possession of the land. The plaintiff commenced this action in equity, claiming that in November, 1868, the parties made a verbal contract by which the plaintiff purchased the land of defendant; that possession was taken under the contract, and the land improved by the plaintiff. A specific performance of the alleged verbal contract was demanded. The action for the possession was enjoined. Issue was taken upon the petition for specific performance. A trial was had upon the merits, and a decree was entered dissolving the injunction, and dismissing the petition. The plaintiff appeals.T. J. Trulock and H. H. Stutsman, for appellant.

Seerley & Clark and Theo Guelich, for appellee.

ROTHROCK, C. J.

1. A question is made by counsel for appellee as to the right of the plaintiff to maintain the action. It is urged that he should have set up his claim to the land in an answer to the action of forcible detainer, and that the justice of the peace, before whom the proceeding was pending, would have certified the case to the district court as involving the title to real estate, and that all of the rights of the parties could have been determined in that action. The conclusion we have reached upon the merits of the case renders it unnecessary to determine that question, and it is for the interest of the parties that the controversy between them be determined without further litigation.

2. The farm has been owned by the defendant for many years, and we infer from the evidence that it is quite valuable. He had three sons and one daughter. Before the arrangement was made which plaintiff claims was a purchase of part of the farm by him of his father, the plaintiff and his brother William had removed to the state of California. The plaintiff was then married. The daughter was also married, and resided in the city of Burlington. The other son, named Henry, was unmarried and lived at home on the farm with his parents. The father and mother desired that William and the plaintiff should return from California, and wrote letters to them to that effect. On the 10th day of June, 1867, the defendant wrote a letter to the plaintiff which was as follows: “Dear Children, [Conrad and Mary Lich:] We received your welcome letter the 8th of June, and have seen out of it that you are well. You write your letter that you don't know whether you will get anything if you come back or not. Now, I will tell you boys what I am willing to do with you all. I am willing to defray some of your expenses for your coming back, and then I will divide my land in equal pieces, and then you may draw cuts, each of you, and then I don't ask no more than the fourth part of what you raise, with the exception of about five or six acres, which I reserve for me. You boys can have it all. I can't work much more, and your mother neither. You write me in your letter you are doing pretty well there, and I wouldn't force you to come back if you think that you are doing better there than you could here. We like very much to have you here, and every one of you is welcome. You come, and your wife, and your brother William, and...