Malli v. Willett

• Decision Date: 24 March 1882
• Citation: 11 N.W. 661,57 Iowa 705
• Parties: MALLI v. WILLETT
• Court: Iowa Supreme Court

11 N.W. 661

57 Iowa 705

MALLI v. WILLETT

Supreme Court of Iowa, Des Moines

March 24, 1882

Appeal from Winneshiek Circuit Court.

THIS is an application for the allowance of a claim against the estate of Franz Mally, deceased. The claim is based upon an alleged contract in writing, by which the decedent bound himself to give the plaintiff a lease for life, or a life estate, in certain land, and a lease for ten years upon certain other land. Upon a trial in the Circuit Court the claim was allowed to the extent of $ 2,000, and the administrator appeals.

REVERSED.

Willett & Willett, for appellant.

Brown & Wellington, for appellee.

OPINION

ROTHROCK, J.

I.

The contract upon which the claim is based is as follows "This agreement entered into this 22d day of October 1870, by and between Franz Mally, of Clayton county, State of Iowa of the first part, and John Malli, of Winneshiek county and State of Iowa of the second part. Witnesseth: That, whereas, the said Franz Mally, for a valuable, good and sufficient consideration received (the receipt whereof is hereby acknowledge), do hereby promise and agree with said John Malli, that I will grant a life lease to Christina Malli, the wife of John Malli, on the following described land, to-wit: The south half of the northeast quarter, section 14, township 97, range 9, embracing the house which stands in part on the north half of said quarter section, to use said house with the south half of the land as her own, during her and her husband's natural life, but after the death of Chriatina Malli and John Malli all right of ownership to said land shall go back to the children of Franz Mally. I do further agree to give a time lease for ten (10) years on the north half of the northeast quarter of section fourteen (14), township 97, range 9, all in Winneshiek county, Iowa.

"Provided, however, that said Christina Malli and her husband shall deliver in the granary at the farm, after the expenses of necessary repairs on buildings and fences have been deducted from the amount so raised from said last named land, for each year during the ten years, one-third of the balance so left, and Franz Mally is to pay all taxes assessed against said farm, except on personal property, which Christina Malli shall pay.

"It is further agreed, that should Christina Malli at any time be willing to give up this contract, I will give her a good warranty deed on eighty (80) acres of land, near Le Mars, in Plymouth county, Iowa where there is at least four hundred dollars worth of improvements made on it, and all the live stock and farming tools.

"This contract shall take effect from the day the above named land is sold under a foreclosure of mortgage, wherein A. Bradish claims a judgment against John Malli, and for the purpose not to make any more costs to secure the right of redemption for John Malli, I, Franz Mally, will buy the land in at sheriff's sale, and John Malli waiving all rights and interest in the farm. And this new contract under this lease be from that date in full force and virtue, except in case that Christina Malli will except the above agreement left to her option."

(Signed)

FRANZ MALLY,

JOHN MALLI."

It appears from certain agreed facts in the case that at the time the written contract was executed, John Malli, the husband of Christina Malli, the plaintiff herein, was the owner and in possession of the premises described in the contract, and that he had executed to Franz Mally a mortgage thereon to secure $ 5,000 purchase-money for the land. This mortgage was signed by John and Christina Malli, and it is the same mortgage which is mentioned in the written contract. Franz Mally had commenced an action to foreclose this mortgage against John and Christina Malli and A. Bradish et al., and afterwards the same action was dismissed. In 1871 Franz Mally assigned said mortgage without consideration, and after maturity, to his four sons Frederick, William, Paul and John Mally. The assignment provided that the assignees should secure to Christina Malli a lease for ten years on S 1/2, N E 1/4, section 14, T. 97, R. 9, on the terms that Christina Malli should pay to the assignees one-third of the crops raised on said land during the lease. The assignment made no provision for the life estate, or lease for life, upon the other eighty acres of land. The assignees afterward commenced an action to foreclose the mortgage. John and Christina Malli appeared in the action and alleged fraud in the execution of the mortgage and payment and satisfaction of the mortgage debt. The court adjudged that the plaintiffs in the action were entitled to judgment and a decree of foreclosure, whereupon the defendants asked until the next day to file an amendment, setting up the written contract with Franz Mally. This was refused. The decree of foreclosure was entered and afterwards the land was sold on special execution, the assignees of the mortgage purchasing the same by a trustee, who afterwards conveyed to them. An action was commenced by the assignees for possession of the land under a claim of absolute ownership. John and Christina Malli appeared to this action and pleaded the contract and assignment hereinbefore referred to, and claimed to be entitled to the possession of the premises. The plaintiffs to the action pleaded the decree of foreclosure as an adjudication, and the...