Mills v. Hall

• Decision Date: 21 June 1926
• Docket Number: 37816
• Citation: 209 N.W. 291,202 Iowa 340
• Parties: LULU HALL MILLS, Appellant, v. A. P. HALL et al., Appellees
• Court: Iowa Supreme Court

209 N.W. 291

202 Iowa 340

LULU HALL MILLS, Appellant, v. A. P. HALL et al., Appellees

No. 37816

Supreme Court of Iowa, Des Moines

June 21, 1926

REHEARING DENIED OCTOBER 4, 1926.

Appeal from Taylor District Court.--HOMER A. FULLER, Judge.

The plaintiff appeals from an order by the court overruling a motion or petition to set aside and vacate a judgment in a partition suit, and for a new trial.

Reversed.

J. M Haddock, for appellant.

Wisdom & Kirketeg, Frank Wisdom, and Flick & Lucas, for appellees.

STEVENS J. DE GRAFF, C. J., and FAVILLE and VERMILION, JJ., concur.

OPINION

STEVENS, J.

I.

Appellant alleged, in her original petition, that she is the absolute owner of Lots 3 and 6 in Block 3, original town of Bedford, and prayed that title in her be quieted as against A. P. and H. K. Hall, her brothers, and their spouses, but further asked that, in the event that the court should find that she was the owner of only an undivided interest in said property, the same be partitioned and sold, and the proceeds divided according to their several respective interests. The property was originally the homestead of Seymour J. and Elizabeth R. Hall, parents of the parties named. Seymour J. Hall died August 6, 1878. From that time until the death of Elizabeth R. Hall, his surviving widow, which occurred on May 30, 1923, she occupied Lot 6 as her home. On or about December 9, 1920, she conveyed Lot 3 to H. K. Hall, and on the same date, in consideration of love and affection, she conveyed Lot 6 to appellant. The record title to the property was in Seymour J. Hall, and at his death passed to his widow and children. Appellant was, therefore, unable to establish title in herself. Recognizing this fact, she and appellee H. K. Hall, who had acquired the interest of his brother A. P. Hall in the property, filed a written stipulation, consenting to a decree of partition upon the basis of a five-ninths interest in appellant and a four-ninths interest in appellee. The stipulation also provided that the parties would pay one half of a certain claim filed by appellee against the estate in the sum of $ 413.90, and that appellant should have the household goods in the home of the mother. A decree was duly entered in conformity to this stipulation, which provided for the appointment of one Elmer Brice as referee. Lot 6 was sold by the referee at public auction to appellee for $ 4,350, and Lot 3 for $ 810. Of this total, $ 1,288.75 was paid to the referee. On July 18th, three days following the date of the sale, appellant discovered among some old papers of her mother's a deed dated July 8, 1891, signed by herself and her brothers, conveying all of their undivided interest in Lots 3 and 6, Block 3, to their mother, for an expressed consideration of $ 700. The deed had not been recorded. The discovery of this instrument was promptly reported by appellant to her attorneys; and on July 29th, a petition to set aside and vacate the judgment and sale, and for a new trial, was filed.

Many questions which we do not deem in any respect essential to the disposition of the main question before us are discussed by counsel. The vital question at this point in the litigation is: Was a sufficient showing made by appellant to entitle her to a new trial? The court below was of the opinion that, in view of all the circumstances disclosed, the deed of July 8, 1891, was of little or no probative value.

The principal contention of appellee is that appellant has wholly failed to show proper diligence to discover the deed before the decree was filed. Both appellant and appellee admitted the genuineness of the signatures attached to the deed, and testified that they had no recollection of its execution. It is clear, therefore, that the deed was not considered by the parties, at the time the stipulation for a decree was signed. Appellant testified that the deed, with a large number of other papers, was found by her in a room in the home of her mother used for storage only, marked on the outside of an envelope in which they were inclosed, "E. R. Hall, old papers." Among the papers were several farm leases, canceled mortgages, notes, an old abstract, and other papers. Included in the package were two policies of fire insurance upon the dwelling house in question, expiring August 24, 1918. Both were issued to Elizabeth R. Hall. Appellant testified that she did not previously know of the package of papers or of the existence of the deed. Accompanying the deed was a statement in the handwriting of appellee, headed "Valuation and settlement with Ma and Lulu September 7, 1891." The entries on the paper indicate that they were intended to evidence a property settlement. One of the items is "120 & House --$ 2,500." We find nothing, however, on the exhibit explanatory of the consideration expressed in the deed. A large number of annual tax receipts, bearing date prior and subsequent to the deed, were offered in evidence by appellant. Prior to that date, the receipts were issued to the estate, and subsequent thereto, to E. R. or Elizabeth Hall. The court declined to admit the exhibit above referred to and the tax receipts in evidence; but, as they were offered by appellant, and are before us, we shall, in passing upon the petition, give them the same weight as though they had been received.

Appellee admitted that the purported memorandum of settlement was made by him, and that it was probably prepared in contemplation of a family settlement of the father's estate, but denied that it was carried out. The deed was...