Mitchell v. Colby

• Decision Date: 29 May 1895
• Parties: MITCHELL v. COLBY ET AL.
• Court: Iowa Supreme Court

95 Iowa 202

63 N.W. 769

MITCHELL

v.COLBY ET AL.

Supreme Court of Iowa.

May 29, 1895.

Appeal from district court, Adams county; H. E. Deemer, Judge.

Action in equity to compel specific performance of an alleged contract, and to cancel certain conveyances of real estate. Decree was entered in favor of the plaintiff, from which the defendants appeal. Affirmed.Thos. L. Maxwell and Davis & Wells, for appellants.

W. O. Mitchell and H. T. Granger, for appellee.

GIVEN, C. J.

1. Plaintiff filed an amended abstract, the first 15 pages of which set out at length the findings of facts, conclusions of law, and order for decree, as signed and filed by the trial judge. Defendants moved to strike out this part of the amended abstract, upon the grounds that it purports to be the opinion of the trial judge, and is no part of the evidence, pleadings, or record in the case. The case was taken under advisement, decree to be entered in vacation; and, in vacation, the trial judge filed his findings and order, as set out in the amended abstract. While the document thus signed and filed by the judge is, in form and effect, the opinion of this court, it is also a statement of the findings of facts and of conclusions of law made by the court, and the order of the court specifically directed as to the decree to be entered. It is unquestionably a part of the record in the case, and the motion to strike is therefore overruled.

2. The record before us is quite voluminous, and is elaborated at great length in the arguments for appellants. After a careful reading, we gather the following as a sufficient statement of the case for an understanding of the controlling questions involved: The following facts appear without controversy, or are fairly established by the evidence: In November, 1891, Moses Colby died without children, leaving his wife, Harriet, surviving him. He left a large estate in real and personal property, partly in Kane county, Ill., and partly in Adams county, Iowa, all of the value of about $70,000. So far as has been ascertained, he left no will. He held a mortgage on certain real estate in Corning, Adams county, Iowa, known in the record as the “Beymer Property,” which mortgage had been foreclosed, and sale made thereof, from which the time to redeem expired on the 6th of July, 1892. Deceased had formerly resided in Kane county, Ill., and his remains were taken from Corning to Illinois for burial, accompanied by Mrs. Colby. Mrs. Colby thereafter remained in Illinois, and, at her instance, administration was granted upon the estate in Kane county, one Laban Hayward being appointed administrator. The defendant J. N. Roland was appointed ancillary administrator by the court of Adams county, Iowa. The defendants in this action, other than J. N. and Nellie I. Roland, are children or descendants of the brothers and sisters of deceased, and entitled to share in the distribution of his estate. Under the laws of this state, if Mr. Colby was a resident thereof at the time of his death these heirs would take one-half of his estate, both real and personal, but if he was a resident of the state of Illinois their share in the estate would be much less. Mr. Colby having resided in Adams county, Iowa, for some time before his death, it was to the interest of these heirs to establish that his domicile was in this state at the time of his death. The defendant heirs, through Mr. True W. Townsend, of Boston, Mass., their attorney in fact, employed the plaintiff (then, and for many years prior, a practicing attorney, residing at Corning, Iowa) to represent their interest in said estate. They entered into a written contract whereby plaintiff agreed to take charge of litigation growing out of said estate, and give it his best efforts and attention, in consideration of which it was agreed that he should have $100 retainer fee, to be paid in cash, $100 trial fee in district court, and 10 per cent. additional on all money or property recovered for the heirs from said estate, “whether by suit, compromise, or settlement.” It was also agreed that, if the heirs received only an interest in the Illinois real estate. plaintiff was to receive no per cent. on the amount thereof. Under this employment, plaintiff proceeded at once to give all proper and necessary attention to the litigation in the courts of Illinois and Iowa with respect to said estate. After a time, overtures for a settlement between the widow and these heirs as to the distribution of the estate began to be made. The defendant J. N. Roland of Corning, Iowa, ancillary administrator, was, with the sanction of Mr. Townsend, authorized to go to Illinois, and see what compromise the widow was willing to make, and it was agreed that he should have one-half of all over $20,000 that he could procure for these heirs. He went to Illinois, but accomplished nothing more than to learn that Mrs. Colby had authorized her attorneys at Corning to make an offer of settlement. The plaintiff thereafter took an active part in trying to bring about a compromise between the widow and these heirs, and, after an extensive correspondence and several interviews, Mr. Townsend, the plaintiff, the attorney in Illinois for Mrs. Colby, and the principal administrator met in Aurora, Ill., and, after extended negotiations, agreed upon terms of settlement, which were reduced to writing, and signed by Mrs. Colby, Mr. Hayward, administrator, and Mr. Townsend, attorney in fact, on the 22d day of September, 1892. By said writing it was agreed that these heirs should have $21,000, and the Beymer property, in Corning, Iowa,--Mrs. Colby to have all the residue and remainder of the estate,--and at the coming January term of the district court of Adams county, Iowa, an order should be entered for such distribution of the estate. It was also agreed that J. N. Roland, who held the legal title to the Beymer property, should convey the same to the heirs, and that all costs and expenses of the settlement of the estate in Iowa should be paid by Mrs. Colby, or the Illinois administrator. It was...