Reddish v. John
| Decision Date | 26 November 1920 |
| Docket Number | No. 32906.,32906. |
| Citation | 190 Iowa 49,179 N.W. 951 |
| Parties | REDDISH v. JOHN ET AL. (WATTS, INTERVENER). |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Lawrence De Graff, Judge.
Lizzie John and Caleb John complain of allowances made in an accounting. Modified and affirmed.Clark, Byers & Hutchinson, of Des Moines, for appellants.
Parsons & Mills, of Des Moines, for Reddish, appellee.
John L. Gillespie, of Des Moines, for Watts, intervener.
I. So far as this appeal is concerned the single question is whether, in an accounting between remaindermen, one of them was awarded enough. The appellants John contend that the findings below did not allow them enough.
One contention of the appellee is that no allowance can be made for some items claimed by the appellants because to do so would go beyond the scope of the reference which the trial court ordered. For illustration, it is claimed that, if the reference is limited (and it is asserted to be so limited) to what is due Lizzie John for advances made by her, no allowance can be made if her husband did the advancing. We are of opinion that the trial court, in acting upon the report of the referee, treated all the matters urged upon us as being in issue, and we shall so treat them here.
[1] II. As to an item claimed to be due for paying a note of Watts at the Iowa National Bank, we cannot interfere with the refusal to allow this, if for no other reason than that this item is not pleaded.
III. As to the item at Century Savings Bank we agree with the referee that the evidence is insufficient to charge Watts with same. We incline to hold that the item of the note at the Des Moines Savings Bank is in like case.
IV. The most vigorous dispute is over a claim that Watts should be charged at the rate of $500 a year for six years on account of rental for a farm owned by the father of both Lizzie John and Mary Watts. The farming upon which this claim is based began in 1902 and ended in 1908. Much of the testimony in support of this claim cannot be considered because of the statute prohibition as to personal transactions with one deceased at time of hearing. And we find that the weight of the evidence is against the claim that any rental arrangement was ever made or that anything is due by implied contract. It would serve no useful purpose to elaborate. We agree with the referee in declining to allow this item.
V. The appellants make claim now for compensation due Lizzie John for attending to renting, collecting the rent for, and looking after and caring for, the property of appellee Watts. With one exception, no claim on these accounts seems to have been made in the pleadings, nor have we been able to find what the alleged services were worth, if anything. The exception is an item of $8.75, which the referee declined to allow.
This sum was paid by appellants to one Van Liew for collecting rent. Without going into an elaboration that the size of the item will scarcely justify, we are of opinion that this should have been allowed.
[2][3][4] VI. The appellants advanced $747 on the purchase price of a store building of Watts, and the referee allowed but $663. As to this item the appellee especially urges his plea of laches and statute of limitations. We do not have before us a continuous open account which would postpone accrual until after the last item, and we are convinced that, if this were an affirmative suit to recover for this expenditure, the suit could not be maintained. But, in the very nature of things, a mutual accounting makes the items urged by each in the nature of an offset to the claim of the other. And the striking of a balance is not interfered with by the statute of limitations. And there having been an allowance, and there being no cross-appeal, we cannot well bar this item for laches. We, therefore, hold that there should be added to the allowance already made the sum of $84, with interest.
[5] VII. Lizzie John paid a special tax of $31.06 for the laying of a sidewalk. She contends that this is a permanent improvement; that, even if a contract of settlement does not free her or her father from paying for this, the general law of life tenancy is that the life tenant is not bound to pay for permanent improvements. The appellee says that a sidewalk is not necessarily a permanent improvement, and that it is matter of common knowledge, in cities, at least, that sidewalks laid down are very soon taken up and changed; also that, at any event, the betterment was for the benefit of the life tenant during the time he lived; that he lived a year to enjoy this benefit, and that there is no evidence how much longer than that the sidewalk would have lasted. On the authority of 16 Cyc. 132, Huston v. Tribbetts, 171 Ill. 547, 49 N. E. 711, 63 Am. St. Rep. 275, and Hay v. McDaniel, 26 Ind. App. 683, 60 N. E. 729, 731, we incline to the opinion that $10.35 should have been allowed on this account. But Shelangowski v. Schrack, 162 Iowa, 176, 181, 143 N. W. 1081, states the general rule that the life tenant cannot on his own volition charge the property with permanent improvements for the very evident reason that otherwise he might destroy the value of the reversion by the charges placed against it, and that he may so charge the property only upon agreement, express or implied, on part of the remaindermen. An examination of the evidence satisfies us, however, that this improvement was so known and acquiesced in as that the Shelangowski rule is not in the way.
[6] VIII. The appellants were charged with having received $16 a month for the entire period during which Lizzie John attended to the renting of the Mary Watts property. The evidence shows fairly enough that there were periods aggregating say three months in which the building was vacant. The appellee contends that, though this may be so, it may yet be the fact that, though the store was vacant for such length of time, it was due to the interval between the moving out and moving in of tenants, and that full rent may have been received, even for the times at which the store was empty. It seems to us to be strained reasoning. And on the evidence as it stands we are inclined to add to the recovery of the appellant the further sum of $48, with interest thereon.
[7][8] IX. The referee declined to allow an item of $726.84 which Lizzie John claims to have paid. The father of these litigants and grandfather of one of them was once in litigation as to the validity of deeds executed by the father to these others. There was a settlement in writing. This settlement confirmed these deeds and reserved a life estate in the father. At this time the father was indebted in $4,500.00. One contract provision was that the children and the grandchildren should pay this indebtedness. Two sons paid their one-fifth in cash. The other three mortgaged the land which the father had given them for $2,700, and with this sum met their contract obligation to pay said debts. The mortgage was that of the children. The proceeds were used to pay what had become the debt of these children. The...
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