McCubbin v. Urban

• Decision Date: 09 May 1956
• Docket Number: No. 48893,48893
• Citation: 77 N.W.2d 36,247 Iowa 862
• Parties: Walter M. McCUBBIN and Alma McCubbin, Plaintiffs-Appellees, v. Clarence URBAN and Ruth Urban, Defendants-Appellants.
• Court: Iowa Supreme Court

Page 36

77 N.W.2d 36

247 Iowa 862

Walter M. McCUBBIN and Alma McCubbin, Plaintiffs-Appellees, v. Clarence URBAN and Ruth Urban, Defendants-Appellants.

No. 48893.

Supreme Court of Iowa.

May 9, 1956.

McCarville & Bennett, Fort Dodge, for appellants.

Bradshaw & Crawford, Fort Dodge, for appellees.

HAYS, Justice.

Plaintiffs seek a declaratory judgment decreeing their title to certain real estate to be merchantable. The real estate is described as follows: the W. 1/2, N.E. 1/4, Sec. 27; and the S.E. 1/4, N.E. 1/4, Sec. 28, except railroad right of way, all in Twp. 87 N. Range 30, W. 5th P.M., Webster County, Iowa.

On February 9, 1952, the Plaintiffs sold to the Defendants on contract the above described real estate. The contract called for a substantial down payment, which was made, with the balance payable in annual installments of $1,500 or more, continuing for ten years. The contract also provided: 'In case the second party * * * shall pay the several sums of money aforesaid punctually * * * then the first party will make unto the second parties * * * a deed, conveying said premises in fee simple, with the ordinary covenants of warranty; also to furnish an abstract showing good merchantable title of said land in said first party, * * *.' It also contained a forfeiture clause. Defendants entered into possession March 1, 1952; and still retain it.

In the fall of 1952, the Plaintiffs, at the Defendants' request, submitted abstract of title certified to March 20, 1952. In February, 1953, Defendants objected to the title; refused to make the March, 1953, installment payment; and gave notice that they were rescinding the contract. March 6, 1953, Plaintiffs commenced this action alleging the title was merchantable and asking that the Defendants be required to make the March, 1953, installment payment. The Defendants denied that the title was merchantable, and by cross petition asked rescission and damages. In September, 1953, the Plaintiffs gave Defendants notice of forfeiture of the contract and commenced an action therefor. The two cases were consolidated for the purpose of trial which commenced April 14, 1954.

On January 26, 1955, the trial court dismissed the forfeiture action, the Defendants having paid all delinquent installment payments. No appeal was taken therefrom. In the declaratory judgment action the Court directed the abstract be re-certified to date, which was done; and on March 15, 1955, entered a declaratory judgment decreeing Plaintiffs' title merchantable, and dismissed the Defendants' cross petition for rescission and damages. Defendants have appealed.

I. Appellants' first proposition is that Appellees are required to give merchantable title at the time the contract for sale was made. As an abstract statement, this proposition may or may not be correct, dependent upon the particular contract. The general rule is that a title, which a vendor must furnish under an executory contract for the sale of land calling therefor, must ordinarily be good title as of the date when it is required by the contract to be furnished. 92 C.J.S., Vendor & Purchaser, §§ 219 and 226; Annotations, 57 A.L.R. 1253, 1514; Fitchner v. Walling, 225 Iowa 8, 279 N.W. 417; Spangler v. Misner, 238 Iowa 600, 28 N.W.2d 5. Applied to the instant contract, there is no merit to their contention. The contract, as above setforth, clearly provides that this title shall be furnished when Appellants have made all of the installment payments which are payable in ten annual payments extending to 1962. While the contract allows payment of the balance at any time, and Appellants assert a readiness to pay the same; we find nothing in the record accelerating the time when Appellees are duty bound to make such title. No one contends that the abstract of title indicates impossibility of title at the required time. See Cullumber v. Stahl, 200 Iowa 104, 203 N.W. 270; Hardin v. Union Mutual Life Ins. Co., 222 Iowa 1283, 271 N.W. 176.

In view of the above stated situation there is considerable doubt in the opinion of the writer as to the existence of a justiciable issue as against a mere advisory opinion being sought, and thus a doubt as to the declaratory judgment procedure being available to the Appellees. In re Estate of Pierce, 245 Iowa 22, 31, 60 N.W.2d 894, 900, states: 'It is true declaratory relief will not ordinarily be granted where there is no actual or justiciable controversy between the parties and a mere advisory opinion is sought. Likewise courts frequently decline to pass upon remote, future or contingent rights which may never arise, at least where there is no present need for determination or, because of absence of parties or otherwise, the determination may not be final.' However, since this question is not raised, the doubt is resolved in Appellees' favor.

II. Appellants further assert the entries on the abstract were wholly insufficient to show merchantable title. In their brief point they are content to merely state that the abstract showed many defects which place a cloud upon the title. This is an omnibus statement which, in view of the requirements under Rule 344, R.C.P., 58 I.C.A., will not be considered.

III. The principal proposition urged, both here and in the trial court, concerns a guardian's deed appearing in the chain of title. The abstract shows an undivided interest in this real estate was owned by one Willis Wayne Vert, a minor and a resident of the state of Colorado. In 1946, pursuant to Section 668.23, Code of 1946, I.C.A., F. H. Hensell of Fort Dodge, Iowa, was appointed guardian of the property of said ward. In 1947 the guardian petitioned the court for authority to sell the interest of his ward in said real estate. The petition stated the ward was twelve years of age, that no one was available upon whom notice might be served and asked for the appointment of a guardian ad litem upon whom service should be made. An order was so entered and the notice was thus served. On the hearing the guardian ad litem appeared and made defense. The court specifically found it had jurisdiction over the subject matter and the parties. It authorized and approved the sale and deed which was dated in November, 1947. Grantees therein are the Appellees here.

The trial court recognized the well settled rule, that it will be presumed that the finding of a court that it has jurisdiction over the parties to an action is based upon sufficient proof of notice and that such finding cannot be collaterally attacked; there being nothing in the record to show otherwise. It held such presumption must prevail as against Appellants' attack thereon. 49 C.J.S., Judgments, §§ 401, 425; Whiteley v. Mills, 239 Iowa 80, 29 N.W.2d 541; Holliday v. Arthur, 241 Iowa 1193, 44 N.W.2d 717, 24 A.L.R.2d 1302. However, in view of Section 668.23, Code of 1950, I.C.A., the court, under the procedure approved in Slack v. Mullenix, 245 Iowa 1180, 66 N.W.2d 99 ordered the abstract be re-certified to date to ascertain...