Mullen v. Callanan
| Decision Date | 24 November 1914 |
| Docket Number | 29666 |
| Citation | 149 N.W. 516,167 Iowa 367 |
| Parties | MAGGIE MULLEN, Appellee, v. JAMES L. CALLANAN, C. A. DUDLEY and J. G. ROUNDS, Executors of the last will and testament of JAMES CALLANAN, deceased, Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
SUIT in equity to set aside certain conveyances of real estate, for an accounting as to the rents and profits of the land covered by the conveyances, to charge defendants as trustees of certain funds paid to the deceased, Callanan, and to require an accounting from them, and for general equitable relief. The entire action is based upon an alleged fraud perpetrated upon plaintiff by James Callanan, the deceased, in the matter of the sale of some lands in Calhoun county, Iowa. The defendants, who are the executors of the Callanan estate appeared and answered the petition, denying the alleged fraud, pleading the statute of limitations and laches on the part of the plaintiff. They also denied the alleged trusteeship, and pleaded that plaintiff had a plain, speedy and adequate remedy at law, and that plaintiff, having neglected to file her claim with them, the executors, within the time required by the special statutes with reference to the filing of claims against the estate of one deceased, is not entitled to maintain this suit. They also pleaded payment and satisfaction of plaintiff's claim. On these issues the case was tried to the court, resulting in a decree and judgment for plaintiff, and defendants appeal.
Affirmed.
Coffin & Hippee, for appellants.
O. M Brockett and Carr, Carr & Evans, for appellee.
Prior to the year 1889 James Callanan and James C. Savery constituted a partnership under the firm name of Callanan & Savery, with their main office in the City of Des Moines. The firm was chiefly engaged in the handling of what were known, in this state, as swamp lands, having succeeded to the rights of what was known as the American Emigrant Company. Callanan was also engaged in handling lands on his own account, title to much of which was held by tax deeds. The firm and Callanan occupied the same suite of rooms in a building in Des Moines, although they occupied separate rooms and kept their own books. As a rule they had their own employees, save that some of them acted for both; and one or both had a regular attorney by the name of Davis, who had an office on the same floor as did the clients. One Shuck was in the employ of the firm, and had immediate charge of its business. John A Lawless was an employee of the firm for some time prior to the year 1889, and entered into the employment of Callanan individually some time in the year 1890. During the interim he had a desk with the firm, and did some special business for them regarding particular lands. Prior to Lawless' employment by Callanan, one Atkins was in his (Callanan's) employ, and during the year 1889 Atkins was called away for two or three months and Lawless took his place. In order to facilitate business in the two offices, blank deeds bearing the signature of Mrs. Callanan, with her acknowledgment by Atkins, were kept to be used when Callanan's individual lands were sold; and deeds bearing the signature of Mrs. Callanan and of Mr. and Mrs. James C. Savery, with authority to Shuck, who was a notary, to take the acknowledgments of the Saverys, and of Atkins to take Mr. and Mrs. Callanan's acknowledgments, were kept to use in case of sales of lands belonging to the firm. In either case, according to the custom of the offices, all that was needed to complete the deeds was the signature and acknowledgment of James Callanan. The acknowledgments of Mrs. Callanan and of the Saverys were written, as a rule, as of the date that Callanan signed the deed or deeds, although in fact neither Mrs. Callanan nor Mr. or Mrs. Savery in fact appeared at that time. All the lands owned or held either by the firm or by Callanan were for sale at certain prices, and the details were usually attended to by their agents or employees. The lands in controversy, being the west half and the northwest quarter of the southeast quarter of a certain township in Calhoun county, Iowa were entered upon the books both of the firm and of Callanan--on the former as swamp lands, and on the latter as lands held under a tax title; it being suggested that both pieces were claimed under railway land grants, and for that reason subject to tax sale.
Plaintiff and her husband lived in Calhoun county, and were anxious to procure the lands. They understood that Callanan had a tax title for or claim to the property, and also believed that they were claimed by the firm as swamp lands passing under assignment to the firm from the American Emigrant Company. One Mallison, living at Fonda, Iowa was then an agent for both Callanan and the firm for the sale of the lands, and he conducted the negotiations with the Mullens looking to the purchase of the lands; he in turn doing business with Shuck. He first sold them the west half of the section in November, 1889, for the consideration of $ 840, and received a commission of $ 40 for making the sale. Later, and in December of the same year, he sold the other piece for the sum of $ 80. Mallison had all the correspondence with Callanan, or the firm, and he supposed that he was acting with and for the firm, and the correspondence so indicates. As a matter of fact a conveyance by quitclaim deed of the west half of the section was made by Callanan and wife and Savery and wife, and delivered to plaintiff November 22, 1889, and of the other piece on December 19th of the same year. Shuck, who attended to the matter, found the lands listed on the firm books, and forgot or neglected to see if they appeared on Callanan's books; but within a few weeks, if not days, he discovered that the lands were entered on Callanan's books, and was very much perturbed about the matter, as Callanan was a very careful and methodical man, and demanded the utmost exactness and care on the part of his employees. Shuck immediately reported the matter to Callanan, and Callanan upbraided him and complained to Lawless about his (Shuck's) negligence, and Callanan and Shuck immediately went to the attorney, Davis, for advice as to how to get rid of the conveyance; the claim being then made that the lands did not belong to the firm at all, but to Callanan individually. Instead of relying upon any claim of mistake as to the title to the lands, it was decided at the conference between the three men (Callanan, according to the record, suggested it himself) that he (Callanan) and his wife should make a warranty deed of the lands to a nephew of Callanan's, one John Wiley, living in a foreign state, and that this deed should be antedated and signed and acknowledged as of date September 3, 1889, that this should be immediately recorded, and that they then would present the matter to the Mullens as if this were a bona fide antecedent sale, which, if correct, would take precedence over the transfer to the Mullens by the quitclaim deeds.
This scheme was immediately put into execution, and a warranty deed was drawn, signed by Callanan and his wife, and an acknowledgment made of it as of date September 3, 1889. At or before the time the deed was sent to the recorder of Calhoun county, inquiries were made to ascertain whether or not the Mullens had recorded their deeds, and also as to whether or not they had sold either piece of the property. It was found that the deed to plaintiff was recorded, but that so far as the record shows the property had not been sold by her, and so, without any actual delivery of the deed to Wiley, the grantee, this purported deed to him was placed of record. As soon as this was done, Shuck, representing either Callanan, or the firm, or both, wrote to the agent, Mallison, and asked him to secure a cancellation of the Mullen deed. Instead of telling him the truth, it was represented that the deed to plaintiff was made through mistake, in that through oversight they had sold and conveyed, by warranty deed, the same land some time before their negotiations with Mullen, and that he (Mallison) must help them out of the trouble, and get the Mullens to reconvey the land upon a return to them of the purchase money and something for their trouble. It was also suggested to him that, as the Mullens held only a quitclaim deed, a prior warranty deed, although unrecorded, would take precedence over their quitclaim and deprive them of their supposed title. Mallison conveyed this information to the Mullens and they immediately sought the advice of attorneys, and were advised by these lawyers that an unrecorded warranty deed would be superior to and take precedence over a subsequent quitclaim deed, although the quitclaim were first recorded. Assuming that the deed spoke the truth, and that Mallison, who represented both Callanan and the firm in this matter, also spoke the truth, they agreed to reconvey. It was then arranged that the Mullens should deed the land back to Callanan by quitclaim deed, and that they should receive the money paid for it and about $ 300 additional for improvements made by them on the land. The quitclaim deed was accordingly executed on January 9, 1890, and filed for record January 27, 1890, and the Mullens received the amount agreed to be paid. The Mullens then leased the land from Mallison some time in February of the year 1890, for that season, paying $ 50 rental therefor.
One Brower was a local agent for Callanan and the firm, at Rockwell City, for the sale of Calhoun county lands, and in some way the Mullens learned that he had the property for sale, although they thought he (Brower) was...
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