Pap v. Pap, 48764

Citation73 N.W.2d 742,247 Iowa 371
Decision Date13 December 1955
Docket NumberNo. 48764,48764
PartiesJohn PAP, Henrietta Van Engen, Nellie Van Engen, Dora Van Engen and Henrietta Pap, Appellees, v. Gerrit PAP, Josephine Pap, Waiter J. Pap and Effie Pap, Appellants.
CourtUnited States State Supreme Court of Iowa

Diamond & Jory, Sheldon, for appellants.

Fisher & DeWaay, Rock Rapids, for appellees.

PETERSON, Justice.

This is an action in equity by plaintiffs to quiet title to an eighty acre tract and to create a trusteeship in the fee title holder, Gerrit Pap on behalf of himself and plaintiffs and his co-defendant, Walter J. Pap. It is the claim of plaintiffs that although the father of plaintiffs and defendants had executed a warranty deed conveying said land to said Gerrit Pap in 1933, said deed, in fact, only created a naked title in the grantee and that by reason of actions of the grantor during his lifetime, and also of the grantee during such period and after the death of the grantor, a trust relationship was established in favor of the seven children of the grantor who were the residuary beneficiaries under the codicil to his wil. The District Court entered a decree in favor of plaintiffs and defendants Gerrit Pap and wife have appealed.

Dries Pap was a farmer in Lyon County, Iowa, and up to 1933, he had accumulated a rather extensive acreage of farm land, although all of said land was subject to some mortgage indebtedness. He was the father of eight children by his first marriage: John Pap, Andrew Pap, Henrietta Van Engen, Nellie Van Engen, Dora Van Engen, Walter Pap, Albert Pap, and Gerrit Pap. Gerrit Pap was the youngest child and in 1933, was about eighteen years of age and was living at home with his father and his stepmother. The mother of the eight children had died sometime before said year and Dries Pap had re-married. All of the other children outside of Gerrit had married and left home and in 1933 most of them lived in the vicinity of the property involved in this action. Later several of them moved to California.

On March 25, 1933, Dries Pap had his banker at Doon, Iowa, prepare a warranty deed under which deed he conveyed to his son, Gerrit Pap, an eighty acre tract described as E 1/2 of SW 1/4 of Section 20, Township 98 North, Range 45 West of the 5th P.M., in Lyon County, Iowa. He signed this deed alone because he had entered into a prenuptial agreement with his second wife, under the provisions of which it was not necessary for her to join in the conveyance as to any of his land. This eighty acres was a part of two hundred and forty acres owned by said Dries Pap in said area and was known as the middle eighty. There was a mortgage against the property at the time of the execution of said deed of $2,100 and the deed was executed subject to said mortgage, but there was no assumption clause in the deed as to the grantee. The consideration set out in the deed was $1,000.

Dires Pap and his wife, with Gerrit Pap living at home, continued to occupy the buildings and to farm the farm involved until 1936, when Gerrit Pap was married. Mr. and Mrs. Dries Pap then moved to Doon, Iowa, to make their home.

In 1936, the mortgage against the property was increased from $2,100 to $3,000 and because he held the fee title this mortgage was executed by Gerrit Pap and his wife. There was no change of mortgagee and said mortgagee required in connection with the execution of the new mortgage, and approval of title, that a quit claim deed be executed by Dries Pap and his second wife to Gerrit. The record is not completely clear as to who received the difference of $900, but the indication is that Gerrit Pap received it because later in a written statement, which will be described hereafter, Gerrit Pap stated that the $1,000 consideration in the deed had been repaid to him. After Dries Pap moved to town Gerrit Pap did not take possession of the full eighty acres, and never did until after his father's death. He occupied the buildings and had possession of approximately the south forty acres of the eighty, but he rented another thirty-two acres adjoining said forty from his father. As far as the actions of the grantor are concerned the commencement of the trust situation involved in this action commenced immediately after the deed was made, because grantor continued to farm the eighty until he moved to town. It continued through rental, after Dries Pap moved to town and Gerrit and his wife proceeded to farm the forty acres with the adjoining thirty-two acres. During all of the years from 1936 until May 26, 1952, when Dries died neither grantor nor grantee paid any attention to the deeds. Gerrit paid rent to his father on this seventy-two acre tract, which included forty acres covered by the deeds referred to above. He paid rent on the basis of $7 per acre. Appellants admitted that money was paid by Gerrit to Dries regularly throughout the years, but they argued that Gerrit only paid money to his father when he needed it, and in uneven amounts from time to time. However, this point is definitely settled by the testimony of Gerrit Pap himself under cross-examination. He stated that he paid his father annual rent at the rate of $7 per acre. Appellants also urged the point that Gerrit paid the interest on the mortgage throughout the years, but this point was settled by Gerrit in his testimony when he stated that the amount of the interest paid by him was deducted each year from the total rent which he paid his father. Gerrit also stated in his testimony that throughout the years his father paid the taxes an the eighty acre tract, although by reason of the title standing in the name of Gerrit the tax receipts were made out in his name.

On May 26, 1952, Dries Pap departed this life testate. In his will dated February 5, 1930, he made three specific bequests of $1,000 each to three of his children, one of them being Gerrit. He then divided the residue as among his eight children. The amount his second wife Maria was to have had already been established in the pre-nuptial agreement. He appointed John as the executor of the estate. Later, on October 10, 1941, he executed a codicil to his will in which he did not change the three specific bequests, but under which he made a specific bequest of $500 to his son, Albert. He divided the residue of his estate as among his seven other children, heretofore named. John had moved to California so he appointed Walter Pap and Gerrit Pap as executors of his estate.

After the funeral the children had a meeting at the home of Walter Pap for the purpose of the reading the will and codicil. Same were duly read. While apparently there had not been general knowledge in the family with reference to the deed executed by Dries Pap to his son, Gerrit, was of them knew about it and Gerrit was asked about the deed. He had brought the deed with him so he passed it around for his brothers and sisters to look at it. This became the basis of some discussion and some harsh words among the members of the family. There was considerable discussion concerning payment of gift tax.

John Pap who lived in California had returned for his father's funeral and he was staying at the home of Gerrit Pap. The next day after the meeting above described Gerrit informed John that he would be willing to buy the eighty acres from the family on the basis of $300 per acre. Another meeting was then held at Gerrit Pap's home and while some of the members of the family thought this price was too low, yet they finally all agreed to sell their undivided interest in the land to Gerrit on said basis. Three of the brothers, John, Walter and Andrew and a brother-in-law, Herman Van Engen, proceeded to a law office at Rock Rapids and had a lawyer prepare a contract for the sale of the eighty acre tract to Gerrit at $300 per acre. This was on June 5, 1952. Settlement was to be made on March 1, 1953, or at the time of the closing of the estate, whichever date was the earliest. Details of the settlement were not too clear in the contract and for that reason the Trial Court did not decree specific performance. However, it was a contract of purchase, signed by all parties, including Gerrit and his wife.

For the farm year from March 1, 1952, to March 1, 1953, Gerrit paid the interest on the mortgage from estate funds and paid the taxes from estate funds and paid a part of the rent to the estate, although it appears from the record that there is $400 of rent still unpaid.

Andrew Pap and Gerritt Pap retained the firm of Hindt & Hindt in Rock Rapids as attorneys in the estate. Andrew was not able to do very much work in connection with the administration of the estate because he was sick, and not too long after his appointment he departed this life. The plaintiff, Henrietta Pap is his widow and she was the sole beneficiary under his will and stepped into his shoes in connection with the controversy concerning this land. Gerrit, therefore, had to take care of most matters in connection with the estate and he signed the inventory. In the inventory, duly verified by him, he had the attorneys for the estate place the following statement concerning the eighty acres involved in this action: 'E 1/2 of the SW 1/4 of Section 20, Township 98 North, Range 45 West of the 5th P.M., in Lyon County, Iowa, subject to easements for highway; conveyed to Gerrit Pap on March 25, 1933, by warranty deed for $1000.00, subject to all liens and encumbrances. This land handled as though it belonged to Dries Pap and legal title only was in Gerrit Pap. Dries Pap collected all income and paid all taxes, including income tax and paid all expenses. Gerrit Pap lived on the farm and paid rent each year and has been reimbursed his $1000.00'.

There is some contention on the part of appellants that Gerrit did not comprehened the significance of this statement and also that an attorney whom his brother Albert had secured for him had requested the attorneys for the estate not to file the inventory, but the fact...

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