Morse v. Morse

• Decision Date: 19 June 1956
• Docket Number: No. 48931,48931
• Citation: 247 Iowa 1113,77 N.W.2d 622
• Parties: Belle MORSE, Appellant, v. Wayland A. MORSE, Defendant, Letha Thompson, Verle Thompson, Oma Van Horn, Lowell Thompson, Vivian Marks and Ethel Ross, Interveners, Appellees.
• Court: Iowa Supreme Court

Page 622

77 N.W.2d 622

247 Iowa 1113

Belle MORSE, Appellant, v. Wayland A. MORSE, Defendant Letha Thompson, Verle Thompson, Oma Van Horn, Lowell Thompson, Vivian Marks and Ethel Ross, Interveners, Appellees.

No. 48931.

Supreme Court of Iowa.

June 19, 1956.

Rehearing Denied Sept. 21, 1956.

Geo. J. Dugan, Perry, and R. K. Craft, Adel, for appellant.

James B. Smith, Perry, for appellees.

WENNERSTRUM, Justice.

This appeal has developed by reason of proceedings in intervention brought by claimed interested parties subsequent to the entry of a decree of divorce entered in an action brought by Belle Morse against her husband, Wayland A. Morse, since deceased. Approximately one month after the decree was entered the defendant, Wayland A. Morse, died. Thereafter the interveners filed petitions of intervention in the divorce action claiming property awarded to Belle Morse in that proceeding was not subject to such a holding in that Wayland A. Morse was not the legal owner of the land covered in the decree. The trial court held when the divorce case was concluded there was no action pending in which the interveners could intervene. It held, therefore, it had no jurisdiction to determine the rights of the interveners and the plaintiff. It dismissed the petitions of intervention and also the cross-petitions of the plaintiff without prejudice. The plaintiff, the cross-petitioner, has appealed.

Belle Morse and Wayland A. Morse were married on March 30, 1944. On December 17, 1953 Belle Morse filed a petition for divorce, aided by attachment of two 80 acre tracts of land. An original notice, with copy of petition attached, was served personally on the defendant at Gibbs, Adair County, Missouri. On January 8, 1954 the defendant filed a special appearance which attacked the jurisdiction of the court. It was overruled. No general appearance was thereafter entered. In the petition for divorce and amendments thereto it was pleaded a deed had been given by Wayland A. Morse to Letha Thompson, a daughter, for an 80 acre tract and another deed to 80 acres of land had been given to five children of a deceased daughter. These farms are situated in Dallas County, Iowa. It was further pleaded these deeds, dated May 27, 1952 and recorded on July 7, 1952, were illegal and void because of fraud, active and constructive, and further by reason of a breach of a confidential fiduciary relationship between Letha Thompson and Wayland A. Morse. It was further alleged at the time of the making of the deeds Letha Thompson had a power of attorney from her father.

There were two petitions of intervention filed. One was by Letha Thompson and the other was filed by the five grandchildren. The two petitions of intervention allege the same facts and in substance each states the action of intervention is by virtue of section 639.60, 1950 Code, I.C.A. It is therein claimed the property in controversy is held by virtue of a deed executed, delivered and recorded; that the intervener or interveners held the legal title to the respective properties prior to the commencement of the divorce action and the attachment and levy therein made; and the title of the respective interveners is paramount to and superior to any title, lien or claim of the plaintiff, Belle Morse. Each of the interveners ask their claims be investigated, upon hearing the levy under the attachment in the divorce action be released and the court grant such relief as may seem just in the premises.

The plaintiff filed answers and cross-petitions to the two petitions of intervention wherein, in substance, it was stated: The deeds to the interveners were void, illegal, were obtained without legal consideration and were fraudulent; interveners had not brought themselves within the purview of section 639.60 of the 1950 Code, I.C.A., and are not entitled to maintain their actions. The plaintiff further pleaded the facts pertaining to the divorce and the decree. She alleged the decree and judgment merged all the rights under the attachment in the decree, the petitions of intervention are not applicable to the present facts, the interveners have no right to maintain their actions, the plaintiff should have her title quieted in her as against the interveners, and by reason of the facts pleaded the actions brought by the interveners should be dismissed.

The interveners moved to strike that part of plaintiff's answer and cross-petition seeking to quiet the title in her and to set aside the deeds, and alleged the allegatons pertaining to such actions constitute a misjoinder. These motions were overruled.

In order to show how the trial was conducted and the attitude of the counsel for the respective parties we shall set forth a portion of the colloquy between the court and counsel at the beginning of the trial.

'The Court: I suppose another matter might be settled as to whether or not we are in law or in equity, or in law partially and in equity partially. The Court is of the opinion that the whole proceeding now the way the pleadings are that we are in equity.

'Mr. Smith: That is my understanding. * * * I think there are some law questions, but the way I understand the decisions that if equity starts and there are some law questions, equity can continue to so deal with the matter.

'Mr. Craft: If the Court please, my position here is that the petition in intervention is strictly a law action. Then there is a cross-petition which is nothing more than a quiet title action. You might say we have two separate divisions in this matter. It seems to us that the petition of intervention is strictly a law action from beginning to end, and I don't believe there will be any argument about the cross-petition being an equitable action. For that reason I think the petition of intervention should be tried as a matter of law, and then when we get to the cross-petition, why, that is an equity proposition.

'The Court: It makes a difference to the Court as to how ruling is made on objections.

'Mr. Craft: Yes, we would like to know when we start. If we had nothing more than the petition of intervention here, I can see no question but what it would be a law action. Simply because there is a cross-petition wouldn't change that phase of it because that is a separate and distinct matter asking for affirmative relief, and being a quiet title case, why, it necessarily would follow that it would be triable in equity. * * *

'Mr. Smith: I think the only thought I have in the matter, while this is a petition of intervention, I would say it is a petition of intervention intervening in a divorce action. I don't believe there is question but what the divorce action is equity. It is a matter which comes out of the divorce action and is still in this divorce action as far as I am concerned.

'Mr. Dugan: Yes, but in the divorce action you are predicating your right, if any, upon the proposition of the deeds, which directly have nothing to do with the divorce action itself.

'Mr. Craft: As a matter of fact, the divorce action has gone to a decree so it has nothing to do with the divorce, except as to the property that was awarded in the divorce case. * * *

'Mr. Craft: If the Court please, in this matter have we have two petitions of intervention, which are very similar, and two cross-petitions, and I wonder if we might agree that we try and let that apply as to the other one.

'Mr. Smith: It depends on which one you try, I think. I will certainly agree that we will try the petition of intervention of the five grandchildren and let that apply to both of them. * * * 'The Court: The Court will order all petitions of intervention and all cross-petitions and all pleadings pertaining thereto consolidated for the purpose of trial, and the testimony to be received shall be applied to all of them, if it so applies; if it does not apply, why, of course, it wouldn't be applied to that particular pleading. Won't that take care of it?

'Mr. Craft: I think it will.

'Mr. Dugan: Yes, I think so.'

After the opening statements were made the court made a further statement which is, in part, as follows: '* * * the substance of this proceeding is the assertion on the part of the interveners that they are the legal owners of the certain real estate and that their title is paramount and superior to the title of Belle Morse, so in the petition of intervention the title to real estate is involved, which normally is an equitable matter.

'The cross-petitions ask that these particular deeds upon which the interveners base their right be set aside on the ground of fraud and so forth, which again is an equitable matter. So regardless of the technicalities, the substance of the whole proceeding, both under the petitions of intervention and under the cross-petitions, is equitable, * * * so the Court is of the opinion that justice would be better met if the Court ruled that this whole proceeding, both the petitions of intervention and the cross-petitions, were in equity and that we will try the whole proceeding between these parties in equity. * * *'

The trial then proceeded with the introduction of testimony by the interveners.

Later in the trial the following record was made:

'Mr. Dugan: Can we agree here that this testimony that is given will be both defensive as to your matter and also on the cross-petition, there won't be any need to call them at one time and then put them back on again. It would be the same thing over again. It may apply as to the answer and as to the cross-petition. Can we agree to that? * * * What I am getting at is that on the defense and we also raise that in the cross-petition, so that the evidence that is given would be applicable both to the defense and as to the cross-petition. There wouldn't be any use calling them back and reiterating the same thing on each one, is what I am getting at.

'Mr. Smith: Yes.

'Mr. Dugan: May that be so stipulated?

'Mr. Smith: In other words, as far as each deed is concerned? We...