Rorem v. Rorem, 48288

• Decision Date: 09 June 1953
• Docket Number: No. 48288,48288
• Parties: ROREM v. ROREM et al.
• Court: Iowa Supreme Court

Page 210

59 N.W.2d 210

244 Iowa 980

ROREM v. ROREM et al.

No. 48288.

Supreme Court of Iowa.

June 9, 1953.

Gerald O. Blake, Jewell, and Phelan, Karr & Karr, Webster City, for appellant.

John Barry, LaJolla, Cal., and Lundy, Butler & Lundy, Eldora, for appellees.

WENNERSTRUM, Justice.

Plaintiff sought in an equity action to establish title to certain real estate and to require an accounting for its prior use, and also recovery of claimed unaccounted-for guardianship funds. The trial court held he had failed to establish by sufficient and competent evidence any of the three counts of his petition and dismissed it. He has appealed.

The plaintiff, Gaylord Rorem, and his brother Elmer Rorem, one of the defendants, are sons of Austin Rorem and his first wife, Malinda Anderson Rorem, who died in 1891. Austin Rorem subsequently married Myrta Sintiver who survived him. To this last marriage were born S. Dale, Mark and Lydia Rorem. The widow and the last three named children, and also Elmer Rorem and Mark Rorem, as executors of the will of Austin Rorem, were named as defendants. Elmer Rorem did not appear by counsel and filed no answer. The other defendants had legal representation and filed answers. The will of Austin Rorem gave to his surviving wife a life estate in his property with the right to use any of the body of the estate necessary for her care, support and maintenance. The portion of decedent's estate remaining after the death of his wife was bequeathed and devised to the five children heretofore named.

Plaintiff's petition is in three counts. In the first one it is alleged Malinda B. Rorem in or about the year 1895 received an inheritance of $1,400, and Austin Rorem invested this money in the purchase of 80 acres of land in Hamilton County, Iowa, taking title to it in his own name. It is further alleged there was an oral agreement between Austin Rorem and his wife Malinda 'that upon the death of both' the survivor would will the property to Malinda's then living children. Despite the allegation of the receipt of an inheritance by Malinda Rorem in 1895, it is further alleged that in 1891 she died. Austin Rorem died on August 15, 1949 and it is alleged he failed to provide by his will for a transfer and devise of the real estate in question in keeping with the claimed oral agreement. The plaintiff asked for a decree confirming the title in himself and his brother Elmer as against all other defendants.

In the second count it is alleged Austin Rorem was appointed and qualified as guardian of plaintiff, Gaylord C. Rorem, and his brother Elmer; that he received $3,398.70 belonging to the two wards and without approval of court the guardianship funds were used by him in the purchase of a farm property in Hamilton County, Iowa and he used this real estate until his death; and that the title to this land was held by him in trust for the two sons. It is asked the title to said land be decreed to be vested in fee simple in plaintiff and his brother Elmer.

In count three of plaintiff's petition it is alleged Malinda Rorem was the daguhter of one, Ener Anderson, who died in the year 1900 and whose estate was administered in Illinois; that Austin Rorem was appointed as guardian of the two sons, Gaylord C. and Elmer T. Rorem, and in the year 1901 the said guardian received from the Ener Anderson estate for the benefit of his wards the sum of $1,200 and in 1902 received an additional sum of $160.72 and other amounts on later dates. It is further alleged in this count of the petition the guardian never made an accounting or settlement for said sums received for his wards; the guardianship was never closed and Austin Rorem was still acting as such guardian at the time of his death. It is further alleged that Austin Rorem had told the plaintiff and his brother Elmer that certain property belonged to them; that they did not learn of the inaccurate representations made to them until after the death of their father and guardian. Plaintiff in his petition asked that an accounting be had and the rights of himself and Elmer T. Rorem be established in the guardianship funds and they have judgment against the defendants and that the executors of the Rorem estate be required to pay plaintiff a sum equal to the amount received by the guardian with interest.

The answering defendants denied the allegations of count one of plaintiff's petition that Gaylord C. and Elmer T. Rorem are the owners of the land claimed. They further alleged Austin Rorem held absolute title to this property under open, notorious, exclusive and adverse possession of said land since before January 1, 1930 and for more than ten years following the alleged oral agreement; that the plaintiff and Elmer T. Rorem knew of the claimed ownership of Austin Rorem and of the various transactions relating to the title to these particular properties; and that the plaintiff and Elmer T. Rorem dealt with their father on the basis he was the owner of said land. After his death they did not file any claim in his estate for the recovery of any alleged indebtedness and permitted the estate to be administered. By reason of these facts and acts they are now barred and estopped from claiming title to said real estate or the funds of said estate of Austin Rorem.

In answer to count two it is denied the property referred to in this count was held by Austin Rorem as trustee and that Gaylord C. Rorem and Elmer T. Rorem are the absolute owners thereof. It is further alleged Elmer T. Rorem attained his majority on March 4, 1905 and Gaylord C. Rorem attained his majority on November 9, 1907 and by reason of their failure to assert their claim to the property or funds in the hands of Austin Rorem prior to the commencement of plaintiff's action they are guilty of laches and are barred by the statute of limitations from now making any claim to said property and funds. It is further alleged plaintiff has no right of recovery in this action because no claim was filed in the estate of Austin Rorem and the period for filing claims therein has expired. The answering defendants pleaded in response to the allegations of count three that the plaintiff has been guilty of laches, that the claim and action as set forth in this count are barred by the statute of limitations and that he is estopped from now claiming any interest in said property. It is also pleaded that as a further bar to plaintiff's action there was a proceeding instituted in Hardin County, Iowa by the plaintiff to set aside the will of Austin Rorem, deceased, on the grounds of testamentary incapacity and undue influence, which action was dismissed.

Plaintiff in his reply denied the material allegations of defendants' answer and particularly denied the claim of laches, adverse possession and estoppel as pleaded.

The evidence shows that Austin Rorem and Malinda B. Anderson were married some time prior to the year 1884, that the two children were born thereafter, that administration was had of the Ener Anderson estate in Illinois and that Austin Rorem was appointed guardian for the two sons. It is further shown he received as guardian the approximate sum alleged in plaintiff's petition; that this guardianship proceeding was had in Hardin County; that no reports were ever filed and no settlement is shown to have been made by the guardian with his two wards.

The evidence further shows in connection with the purchase of what has been referred to as the Hootman eighty that Austin Rorem obtained title to it on March 10, 1884 paying for it the sum of $1,400 and on the same day he and his wife executed a mortgage for the same amount. It is also shown that following the original purchase and mortgage subsequent mortgages were placed on the property, and on September 20, 1930 Austin Rorem gave a mortgage on some of the land here involved as security for a loan of $8,000 which mortgage was later assigned to Elmer T. Rorem, one of the parties to this litigation. This mortgage was released by him on July 20, 1934. The evidence further shows on July 6, 1934 Austin Rorem and his wife executed a mortgage for $9,600 to the Federal Land Bank on some of the lands herein involved and in connection with the obtaining of this last referred to mortgage an affidavit of adverse possession was required and the plaintiff Gaylord C. Rorem obtained such an affidavit from his mother-in-law. Later on December 1, 1943 Austin Rorem and his wife mortgaged this land to the Farmers State Bank of Jewell, Iowa for $8,000. It is shown this bank was then operated by the plaintiff.

It is further shown on June 20, 1884 Austin Rorem purchased 159 acres of land in Hamilton County, Iowa on which there was a mortgage of $3,000 and for which he paid an additional sum of $1,500. This mortgage was released on April 4, 1887 at which time he executed another mortgage on the land for $1,700. From time to time other mortgages were placed on the property. Included in these subsequent mortgages was one dated May 1, 1944 given by Austin Rorem and his wife to the Farmers State Bank of Jewell, Iowa as security for a loan of $6,000. This bank was operated by the plaintiff who was then its vice-president and cashier.

Austin Rorem married his second wife, Myrta, some time prior to the year 1898 and following this marriage lived at Radcliffe, Iowa where he was engaged in the mercantile business. During a portion of the time he was thus engaged Elmer was associated with him. There is also evidence that in 1910 the father furnished $1,250 to his son Gaylord to assist him in the purchase of some stock in a bank in Oklahoma in order that he might therein obtain employment. Later other funds were furnished to Gaylord for investment purposes. The record further shows that...