Nugent v. Dittel
| Decision Date | 16 December 1931 |
| Docket Number | 40929 |
| Citation | 239 N.W. 559,213 Iowa 671 |
| Parties | ROBERT NUGENT, Executor, Appellee, v. CHARLES F. DITTEL et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Scott District Court.--WILLIAM W. SCOTT, Judge.
Action in forcible entry and detainer commenced by Minna Nugent against the defendants Charles F. Dittel and Edna Thomsen for the possession of certain Davenport, Iowa, real estate. Minna Nugent died during the pendency of the action and Robert Nugent became the qualified executor of her estate and the substituted plaintiff herein. The trial court entered a decree for the plaintiff and established the right to possession of said real estate in the executor aforesaid. The defendants appeal.
Affirmed.
Hoersch & Hoersch and M. F. Donegan, for appellee.
Cook & Balluff and Chamberlin & Chamberlin, for appellants.
DE GRAFF, J.
This action of forcible entry and detainer was originally instituted in a Justice of the Peace court in Davenport Scott County, Iowa, on October 11, 1928. The case was voluntarily transferred to the District Court of Iowa in and for Scott County. Prior to the trial, the plaintiff Minna Nugent died, and on March 27, 1929, Robert Nugent duly qualified as the executor of the estate of Minna Nugent deceased, and was subsequently substituted as plaintiff in said cause.
The defendants Dittel and Edna Thomsen filed their answer to plaintiff's petition, alleging (1) a general denial, and (2) that during the month of September, 1924, Minna Nugent "made, executed, and delivered the real property in question to the defendant Edna Thomsen as an absolute unconditioned gift, and that in pursuance of said gift the said defendant Edna Thomsen took possession of said property and has made certain repairs and improvements thereon, and occupied the same without any objections on the part of the plaintiff, and that the absolute fee-simple title to said premises is in the defendant Edna Thomsen and that the plaintiff has no right, title or interest therein." The plaintiff filed a reply to the defendants' answer, denying each and every allegation of said answer. An amended and substituted reply was later filed, containing (1) a general denial and (2) a statement that no such gift as alleged by defendants was ever made by said Minna Nugent to the defendant Edna Thomsen, and that the allegations by which it is sought to establish such gift constituted an attempt to assert an oral contract for the creation or transfer of an interest in lands, and therefore such alleged contract and any evidence by which it may be sought to establish same is within the Statute of Frauds.
Several major propositions arise in this case: (1) Is the alleged parol gift of land within the Statute of Frauds, and does the evidence offered on behalf of the defendants disclose that substantial improvements have been made on the property in question by the alleged donee (defendant Edna Thomsen) after she took possession of the same under the alleged gift from Minna Nugent, and was the alleged gift made in praesenti and with the intent on the part of the donor to convey title? (2) Are the defendants, as witnesses called on behalf of the defense, competent to testify in this case, under the so-called dead man's statute, Section 11257, Code, 1927?
The real estate in question is described as Lot 10, Block 1, in Thomsen & Armil's Addition to the City of Davenport, Iowa, locally known as 602 W. 16th Street, Davenport, Iowa. The property was valued at approximately $ 5000. The decedent Minna Nugent acquired title to the above property under the will of Lena Schmidt, who died September 5, 1924. That title remained of record in Minna Nugent until her death.
I. It is the claim of the defendant Edna Thomsen that she became the owner of the premises in controversy by reason of an oral gift inter vivos from Minna Nugent. If this claim is sustained by the evidence, and further, that the donee Edna Thomsen, pursuant to said oral gift, made valuable improvements on said property, the Statute of Frauds (Section 11285, Code, 1927) has no application. Lembke v. Lembke, 194 Iowa 808, 187 N.W. 863; Hagerty v. Hagerty, 186 Iowa 1329, 172 N.W. 259; Pranger v. Pranger, 182 Iowa 639, 164 N.W. 607; Albright v. Albright, 153 Iowa 397, 133 N.W. 737; Sires v. Melvin, 135 Iowa 460, 113 N.W. 106; Bevington v. Bevington, 133 Iowa 351, 110 N.W. 840.
The defendants rely upon affirmative defenses, and, therefore, the burden is upon them to establish same. Truman v. Truman, 79 Iowa 506, 44 N.W. 721; Wilson v. Wilson, 99 Iowa 688, 68 N.W. 910; Farlow v. Farlow, 154 Iowa 647, 135 N.W. 1. It may be said at this time (waiving, for the moment, the question of the competency of the defendants as witnesses) that the alleged gift took place on September 12, 1924. The defendant Edna Thomsen's version of her conversation with Minna Nugent is:
Defendant Dittel's version of the conversation of Minna with Edna is substantially as follows:
It is true that the defendant Edna Thomsen did take possession and occupancy of the property a short time before the end of the year, but this in itself does not prove a gift inter vivos. Runnels v. Anderson, 186 Iowa 1370, 173 N.W. 91. The change of possession and occupancy under the record evidence is just as consistent with many other theories as with the theory of a gift. Edna was the second cousin of Minna and the niece of Dittel. Edna did not pay rent to Minna, nor did Dittel pay rent to Edna during the occupancy of the home, nor did Minna attempt to disturb Edna's and Dittel's occupancy until August 28, 1928, when she caused a written notice to be served on the defendants, notifying them to vacate said premises on or before the first day of October, 1928. On the 2nd day of October, 1928, a notice was served on said defendants, requiring them to vacate said premises within three days from the date of the service of said notice. Upon the failure of the defendants to comply with said notices, the action in forcible entry and detainer was filed by Minna. Subsequently, and before the trial of said issue, Minna died.
We now turn to the evidence involving the claimed improvements on the property by the defendant Edna Thomsen. It is shown that the original plaintiff Minna Nugent repaired the roof and a furnace pipe. The improvements claimed to have been made by the defendants consisted of papering, varnishing, some painting, the planting of some shrubbery and perennials, and providing a gas connection for the laundry stove. The papering done was in two rooms downstairs, which required about eight single rolls...
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