Prichard v. Mulhall

• Decision Date: 28 October 1908
• Citation: 118 N.W. 43,140 Iowa 1
• Parties: PRICHARD v. MULHALL.
• Court: Iowa Supreme Court

140 Iowa 1

118 N.W. 43

PRICHARD

v.MULHALL.

Supreme Court of Iowa.

Oct. 28, 1908.

Appeal from District Court, Woodbury County; Frank R. Gaynor, Judge.

Suit in equity for the specific performance of a contract for the sale of land. Defendant admitted the contract, but pleaded various defenses, which will be referred to in the body of the opinion. Trial to the court. Decree and judgment for plaintiff, and defendant appeals. Affirmed.Jepson & Jepson, for appellant.

J. A. Prichard and J. W. Hallam, for appellee.

DEEMER, J.

This controversy was once before us in the form of an action at law, and the opinion on that appeal will be found in 127 Iowa, 545, 103 N. W. 774. After the reversal, the plaintiff so amended his petition as to make his action one in equity for the specific performance of the contract. Many issues were tendered by defendant; the pleadings covering something like 19 pages of the printed abstract. We shall only refer to such of these issues as are relied upon by counsel for appellant in his argument. The contract between the parties being in writing and admitted, we here set out the material parts thereof: “The sum of $200.00 cash in hand paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged. The party of the second part shall execute to the party of the first part on the 1st day of March, 1903, or assume a note in the sum of $2,000.00 payable on or before three or five years from the date of the same, bearing interest at the rate of 6 per cent. per annum, payable annually, and which shall be secured by a mortgage upon the above-described premises, which shall be a first lien thereon, and shall also on the 1st day of March, 1903, pay in cash to the party of the first part the difference between the amount this day paid in cash and the mortgage to be executed as above stipulated and the entire purchase price of said premises. The said party of the first part shall within thirty days from the date hereof furnish to the said party of the second part, at his office in Sioux City, Iowa, an abstract of title to the above-described premises, which shall show in Robert Glenn a good and perfect title, free and clear from all liens and incumbrances, and, if said contract of title so furnished does not show good and perfect title, then the said party of the first part shall repay to the second party the sum of money this day paid to the party of the first part, and this contract shall thereby become terminated and at an end. Possession of the above-described premises shall be given to the party of the second part on the 1st day of March, 1903, in the same condition that they are now, ordinary wear excepted. It is also agreed that the party of the second part may at any time before March 1st make the deferred payment as above mentioned and execute the note and mortgage as stipulated, and receive a deed from first party for said premises, and shall be entitled to interest on the deferred payment due March 1st, at the rate of five per cent. per annum from the time of payment up to March 1st, 1903. Upon the party of the second part making the payments herein stipulated and keeping and performing the terms and conditions of this contract on his part to be performed, then the party of the first part will execute, or cause to be executed, by Robert Glenn, to the party of the second part, a warranty deed to the above-described premises, containing the usual covenants of warranty.”

The defenses to the action are that the contract is so inequitable that it should not be enforced; that plaintiff has been guilty of such delay in attempting to enforce it that he is not entitled to relief in equity; that plaintiff never furnished an abstract showing good and perfect title, as he undertook to do under the contract; that the title offered by plaintiff was neither good nor marketable; and that the abstract furnished showed such defects and clouds as that defendant is not required to take and pay for the land. Some minor questions regarding taxes, interest, and the right to rents and profits are also involved. There is no such showing of hardship or inequality in the contract as to justify a court of equity in refusing performance. Plaintiff's delay in his attempt to enforce is fully explained. This explanation, aside from the fact that he commenced an action at law to enforce it some years ago, the action being the one heretofore considered by us, will appear during the course of the opinion. Pursuant to his contract, plaintiff furnished defendant with an abstract of title to the land, which defendant submitted to his counsel for their legal opinion. These counsel made four objections to the abstract, and the abstract was returned with these objections to plaintiff. Plaintiff turned the abstract, with these objections, over to the abstracter with directions to cure them. Attempt was made to do so, and the corrected abstract was returned to defendant, who, in turn, delivered the same to his counsel. Upon re-examination counsel stated that all their objections had been met, save one known as the “fourth,” and that this had not been cured. This last report of defendant's counsel was never communicated to plaintiff either by defendant or his counsel, and the abstract was retained by them down to the time of trial. Plaintiff had no knowledge that defendant was making any objections to the abstract as corrected until faced with them upon the trial. It will be noticed that, according to the terms of the contract, the deed for the land was not to come from plaintiff but from one Robert Glenn. A warranty deed of the land was obtained from Robert Glenn and tendered to defendant March 2, 1903, the 1st being on Sunday, and defendant was offered possession of the land. This defendant refused to receive, giving as a reason that he could buy the land cheaper from some one else, that money was scarce, and that it was difficult for him to obtain the cash wherewith to meet his many contracts. His only claim about the title was that he understood some one was claiming it as an “accretion.” The deed was left with the clerk of courts, produced on the trial of the law case, and left with the court reporter.By the latter it was either lost or sent to defendant's attorneys, in whose possession it was destroyed by fire. It was produced and left in court at the first trial for defendant's benefit. During the pendency of the lawsuit, and before the case was determined upon appeal, Robert Glenn died. Thereupon plaintiff secured a quitclaim deed from James Glenn, who it is claimed was the only heir at law of Robert Glenn, and upon this trial tendered it to defendant and brought it into court for his use and benefit. He also secured an order in probate authorizing the administrator of the Robert Glenn estate to make a deed to defendant, Mulhall. Plaintiff Prichard and his wife also executed a special warranty deed to defendant over date June 4, 1906, conveying the land in dispute, and warranting the title as against the lawful claims of all parties prior to March 2, 1903, and this was also tendered to defendant. Upon the trial of this case, it was shown that there were no conveyances of the land after February 1, 1901, and that there were no judgments, liens, or incumbrances upon or against the land, except taxes that accrued after the sale to defendant.

The fourth objection made by defendant's attorneys to the abstract had reference to the title of Robert Glenn. It was claimed that it did not appear that he was the owner, for the reason that title came by descent from John Glenn, Sr., and that there had been no administration of his estate, and no showing that the subsequent conveyances to Robert Glenn were made by all the heirs of the deceased, John Glenn. John Glenn died intestate April 8, 1899, and administration of his estate might have been had at any time within five years. The abstracter did show a conveyance by six grantors, with their husbands and wives...