Manning v. Berry

• Decision Date: 07 April 1909
• Parties: MANNING v. BERRY ET AL.
• Court: Iowa Supreme Court

142 Iowa 47

120 N.W. 483

MANNING

v.BERRY ET AL.

Supreme Court of Iowa.

April 7, 1909.

Appeal from District Court, Linn County; B. H. Miller, Judge.

This is an action by plaintiff as trustee in bankruptcy to recover certain 80 acres of land as the alleged property of the bankrupt, R. O. Berry, the legal title to which was held by the defendant Robert Berry. There was a decree for the plaintiff. Defendants appeal. Reversed.Chas. W. Bingham, for appellants.

Voris & Haas, for appellee.

EVANS, C. J.

The plaintiff is the trustee in bankruptcy in the matter of the estate of R. O. Berry, bankrupt, who is one of the defendants herein. This action was begun in November, 1905. Defendant Robert Berry was the father of defendant R. O. Berry, known in this record as “Orville Berry.” The claim of the petition is that about 1891 the defendant Robert Berry made a gift to his son Orville Berry of the 80 acres in question, and that, in pursuance thereof, the said Orville Berry went into possession of the land and obtained the rents and profits thereof, and paid taxes and built improvements thereon, but that the father always retained the legal title in himself. Paragraphs 6, 7, and 8 of the petition are as follows:

“Par. 6. That some time about the year A. D. 1891, the exact date this plaintiff is not able to give more definitely at this time, as an advancement on the distributive share of the said son, this defendant R. O. Berry, in and to the estate of his said father, the defendant Robert Berry, the said Robert Berry gave and advanced to the defendant R. O. Berry all of the above-described lands, and pursuant to the said advancement, and to make the same effective and irrevocable, at the said time, to wit, about the year A. D. 1891, the said defendants Robert Berry and his said wife turned over to the defendant R. O. Berry the full, unreserved, and undisputed possession of all of the said lands as his own, with the full and unqualified right to use, occupy, and enjoy the same as his sole property, but, in order to prevent a sale or incumbrance of or upon the said lands by the said R. O. Berry during the lifetime of his said father, the said Robert Berry retained and held the legal title to said lands in his own name in trust for the said defendant R. O. Berry.

Par. 7. That, pursuant to the said advancement to the said R. O. Berry of the said lands, the said R. O. Berry took immediate and full possession of the said lands, and the whole thereof, and made valuable and permanent improvements thereon, constructed and erected permanent buildings on the same, built and maintained permanent fences, paid all the regular state and county taxes levied and assessed on and against the said lands, and used and enjoyed the entire income, rents, and profits thereof, and in every respect used, occupied, and enjoyed the said lands as his own.

Par. 8. That to further carry out the said plan of advancement, and to make the same effective in every respect, and to protect the rights of the said R. O. Berry in and to said lands as against the said defendants Robert Berry and wife, and also as against the other children and heirs at law of the said Robert Berry and wife, and to fully establish and confirm the right and title to all said lands in him, the said R. O. Berry, the said defendants Robert Berry and wife made and executed to the said R. O. Berry a deed to all said lands, duly signed and acknowledged, and delivered the same to the said R. O. Berry, by placing the same in the hands of a third party to be held for the said R. O. Berry, and to be delivered to him upon the death of his said father Robert Berry.”

To this petition the defendants filed a joint answer, which specially denied all the allegations of these paragraphs. Pending the litigation, and in July, 1906, Robert Berry, the father, died, and his executors have been substituted.

1. This case involves a fact question only. Robert Berry in his lifetime owned upwards of 1,300 acres of land. He had seven children. During his lifetime he designated to all of his children just what land he wanted each one to have after his death. He gave to each one of them as soon as married the use of such land so designated. The 80 acres in question was designated by him for his son Orville, and he tried to induce him to live upon it and farm it and improve it, but with only partial success. The testimony on behalf of the plaintiff in support of his petition consists largely of oral statements made by the father to the effect that he had given this land to Orville, and similar statements as to other lands for other children. The following excerpt from the testimony of G. L. Snyder, one of plaintiff's witnesses, is illustrative of the general character of the testimony: “I think I asked him what was Orville's object in leaving the farm, and he said he had become dissatisfied. He didn't know why, and that he was making the sale now, and he was going to let...