Rider v. Clark

• Decision Date: 24 June 1880
• Citation: 54 Iowa 292,6 N.W. 271
• Parties: RIDER v. CLARK.
• Court: Iowa Supreme Court

54 Iowa 292

6 N.W. 271

RIDER

v.CLARK.

Supreme Court of Iowa.

Filed June 24, 1880.

Appeal from Jones district court.

This is an action of partition. The petition alleges that Lucy M. Clark died seized of 145 acres of land, leaving as her only heirs the defendant, her husband, and Charles F. and Ezra W. Clark, their sons; that said Lucy, prior to her death, conveyed to said Charles, certain lands which were intended by her and received by him in lieu of any interest he might be entitled to in the property of said Lucy as heir at law, by reason whereof defendant, as husband of deceased, is entitled to one-half of said property; that plaintiff, by purchase, has become the owner of all the interest of Ezra in said lands, to-wit, the one-half thereof. The plaintiff prays that his right to one-half of said lands be established, and that partition thereof be made. The defendant filed an answer as follows:

“ Paragraph 1. Denies each and every allegation of the petition not hereinafter expressly admitted.

Par. 2. Admits that Lucy M. Clark died the eighth day of February, 1876; that she was the wife of defendant, the mother of Ezra and Charles Clark, and that defendant, and said Ezra and Charles, were her only heirs at law; that she died intestate.

Par. 3. Admits that deceased died seized of the lands in the first paragraph of the petition described, subject, however, to the liens and encumbrances hereinafter set out.

Par. 4. Denies that said Lucy ever conveyed to said Charles any lands, or any property whatever, by way of advancement, or in lieu of any interest he might be entitled to in the property in the petition described, or any other property, and alleges that at the time of her death said Charles became and was the owner of the undivided one-third of the lands in the petition described, as the heir of said deceased.

Par. 5. That on or about the twenty-fifth day of January, 1878, the said Charles conveyed, by quitclaim deed, all his right, title and interest in and to said premises to defendant.

Par. 6. Denies that plaintiff is the owner of the undivided half of said premises, or of any interest therein whatever.

Par. 7. That on or about the twenty-fifth day of September, 1877, the said Ezra made to plaintiff a pretended conveyance of the undivided one-third of the lands in the petition described, and on or about December 4, 1877, said Ezra and wife made another pretended conveyance thereof to plaintiff; that no consideration whatever was paid by plaintiff for said conveyances, but they were made by said Ezra to plaintiff and received by him with the intent to cheat and defraud this defendant and said Charles Clark, and the creditors of said Ezra, as will hereinafter more fully appear, as follows, to-wit: That at said time said Ezra was largely indebted, and on and before said twenty-fifth day of September, 1877, he was insolvent, and ever has so remained, and has been unable to pay his debts; that on or about the tenth day of November, 1875 the said Lucy and defendant borrowed of F. M. Hicks $1,030, on five years time, and gave their note therefor, copy of which is hereto attached, marked Exhibit A, and made part hereof, and secured the same by a mortgage, copy of which is hereto attached, marked Exhibit B, and made part hereof--said mortgage being upon the north half south-east quarter said section 15; that said money was borrowed by said Lucy and defendant for said Ezra and said Charles, they at the time agreeing to pay said note, and discharge said mortgage; that said Lucy and defendant let said Ezra have $530, and said Charles $500, of the money so borrowed of said Hicks, and afterwards the said Ezra and Charles, pursuant to the verbal agreement aforesaid, each executed his written agreement to pay off and discharge that portion of the note and mortgage represented by the amount received by him, with interest as aforesaid, copies of which said agreements are hereto attached, marked Exhibits C and D, and made part hereof, and they, the said Ezra and Charles, each failed in toto to perform his said agreement; that on or about the twenty-seventh day of March, 1876, the said Charles and defendant leased to said Ezra the lands in the petition described, for the term of three years from the first day of March, 1876, the said Ezra in consideration thereof agreeing to pay the taxes accruing on said premises during the term of said lease, and also to pay all claims against the buildings on said premises, said claims being a mechanic's lien in favor of one Burdick for the sum of about $300, a copy of which lease is hereto attached, marked Exhibit X, and made part hereof; that said Ezra paid no part of said taxes and paid no part of said claim, but went into possession of said premises under said lease, and was in possession at the time said pretended conveyances were made by him to plaintiff; that he and plaintiff remained in possession of said premises until the expiration of said lease and received the full benefits thereof, and neither of them nor any one else has ever performed any of the agreements made by said Ezra by the terms of said lease; that all said facts were well known to the plaintiff at and before he took said pretended conveyances from said Ezra, and said pretended conveyances were made by said Ezra and received by plaintiff with the intent and for the purpose aforesaid, and especially for the purpose of ridding the interest of said Ezra in and to said premises from the claim and lien for his portion of the mortgage debt, and the payment of said mechanic's lien; that said Ezra has permanently removed from the state, and is a non-resident thereof.

Par. 8. That on or about the eleventh day of December, 1878, the Monticello Bank, the assignee of the said note and mortgage made to Hicks as aforesaid, obtained a judgment against this defendant and Moulton, as administrator of said Lucy, on the said note, and a decree of foreclosure of said mortgage, a copy of which decree and judgment is hereto attached, marked Exhibit E, and made part hereof.

Par. 9. That on or about the eleventh day of January, 1879, said lands so mortgaged were sold at foreclosure sale on said Hicks mortgage to the Monticello Bank, for the sum of $1,504.41, being the full amount due on said note and judgment, with interest, costs, and accruing costs.

Par. 10. That said Burdick has foreclosed said...