Ross v. Gordon

• Decision Date: 02 May 1961
• Docket Number: No. 50258,50258
• Citation: 252 Iowa 899,109 N.W.2d 208
• Parties: John W. ROSS and Dorothy H. Ross, Appellees, v. Anna A. GORDON, Guardian of the Property of Jackie Roberts, Anna A. Gordon and L. V. Gordon, Appellants.
• Court: Iowa Supreme Court

Page 208

109 N.W.2d 208

252 Iowa 899

John W. ROSS and Dorothy H. Ross, Appellees, v. Anna A. GORDON, Guardian of the Property of Jackie Roberts, Anna A. Gordon and L. V. Gordon, Appellants.

No. 50258.

Supreme Court of Iowa.

May 2, 1961.

Ted V. Ruffin, Cedar Rapids, for appellants.

George C. Claassen, Cedar Rapids, for appellees.

PETERSON, Justice.

This is an action in equity for specific performance of a contract of sale of property in Cedar Rapids. Plaintiffs also prayed for quieting title against defendants. Defendants filed cross-petition paying for quieting title against plaintiffs.

Defendant Anna A. Gordon had adopted her granddaughter Jacqueline Roberts (commonly known as Jackie) sometime prior to 1941. Jackie was four years of age that year. She had a minor automobile accident. Same was settled for $150. It appears that $100 was used for doctor bills and other expenses, leaving $50 in the hands of the guardian. In March of 1941 Mrs. Gordon filed petition for appointment as guardian of the property of Jackie.

Anna Gordon had been in the habit of purchasing some lots and properties at tax sale for herself. On June 19, 1941, she purchased a vacant lot described as Lot 77 in Lenox Place, Cedar Rapids, for $33. She had the grantee in the tax deed denominated as: 'Anna Gordon, guardian of Jackie Roberts, a minor.'

After purchase of the lot, defendant L. V. Gordon, husband of Anna, partially filled in the lot, built a foundation, purchased an old house for $750, and moved it on the lot. He and Anna made other improvements costing $500 cash, and Mr. Gordon performed about 3 months of labor.

In the fall of 1942, defendants met plaintiffs, who had recently moved from Wyoming, and who were looking for a house to rent. The Gordons said they would rent the property to them for $25 per month. This rental transaction was consummated and plaintiffs continued to live in the house as tenants until July 1944.

Mr. and Mrs. Gordon were then desirous of selling the property, and took prospective purchasers to the house. Mr. and Mrs. Ross felt they might lose the place as tenants and were looking for another property to rent. It was then suggested by defendants that they would sell the property to plaintiffs for $2,500, giving them credit of $250 as a down payment from the rent they had already paid, and accepting the balance on a monthly payment plan of $25 per month including interest at 5%. Mr. and Mrs. Ross agreed, and Mr. Gordon said he would have a contract prepared and bring it home, and they could come over and sign it.

A few days later Mrs. Gordon called Mrs. Ross by telephone and said they had the contract at the house. That evening Mr. and Mrs. Ross went over to the Gordon home. The record discloses the following conversation, from Mr. Ross' testimony:

'Q. Who produced--were there some contracts produced there during that evening? A. Yes, Mr. Gordon handed me a contract; he said, our name is already on it.

'Q. And was or was not Mrs. Gordon there at that time? A. She was present.'

The first paragraph of the contract contained the following statement as to vendors: 'Anna A Gordon, Guardian of Jackie Roberts & L. V. Gordon'. However, the contract was signed only: 'Anna A Gordon and L. V. Gordon.'

Mr. and Mrs. Ross signed and took their copy of the contract home with them. The payments were to be made on the 6th of each month, and according to Exhibit 19 introduced in evidence, starting with August 6, 1944, plaintiffs paid regularly on the contract on the 6th day of each month until May 6, 1952.

Mr. Ross always made his payments at the Gordon home and usually by check. Occasionally he paid in cash at which time he received a receipt from Mr. or Mrs. Gordon. Most of the checks were made to defendant L. V. Gordon, although a few checks were made to Mrs. Gordon. No checks were ever made payable to Mrs. Gordon as guardian. When he paid cash, practically all receipts were signed 'Mrs. Gordon'. There were offered in evidence 29 receipts so signed by Mrs. Gordon throughout the years.

In May of 1952 when Mr. Ross came to the house to make his payment he told Mrs. Gordon he was ready to pay the balance on the contract, which according to his computation as shown by Exhibit 19, was $444.95. According to Exhibit 20, which was Mrs. Gordon's computation, the balance was $434.41. He stated he would pay what was shown on his computation.

On that occasion Mrs. Gordon took the payment, but she told him that the title was so mixed up it couldn't be straightened out. At that time, after eight years, for the first time she also told him the signature on the contract was not hers.

Mr. Ross consulted a lawyer who wrote a letter to Mr. and Mrs. Gordon, copy of which is in evidence, tendering the balance due on the contract, and demanding a deed and abstract. Mr. and Mrs. Gordon refused to deliver the deed and abstract. This action was then started in April of 1953. Mr. Gordon departed this life during the pendency of the action and he is in court under an administrator of his estate substituted as party defendant.

During the eight years Mr. and Mrs. Ross were paying for the property they expended the following items: payment of principal for property, $2,500; this includes $500 deposited in the clerk's office; improvements made on the property $4,069.50; paving assessments $233.89; street oiling assessments $75.20; sewer assessments $119.67; regular taxes through the years $650.97; interest on the contract $615; approximate payment for insurance $125; total expenditures by plaintiffs $8,389.23. Witnesses testified to value of the property in 1959 as ranging from $6,500 to $8,500.

Jackie was married September 10, 1955, when she was 19 years of age, so she is now of legal age.

Plaintiffs' petition prayed for specific performance of the contract and for quieting of title. The case was first tried in March 1955. The record is not clear, but it would appear that neither party was satisfied with the decision of the court, and entered into a stipulation for a new trial. The first decision was set aside and held for naught by order of court. Amended and substituted petition in four counts and amended and substituted answer and cross-petition were filed. The case was fully tried again in July, 1959. The trial court decided in favor of plaintiffs, granting specific performance as to the contract, upon plaintiffs depositing an additional $1.51 with the clerk, quieting title in favor of plaintiffs, and dismissing defendants' cross-petition for quieting title. Defendants appealed.

I. There is serious question about the regularity of the guardianship. After the petition for appointment was filed by Mrs. Gordon on March 15, 1941, we find the following entry on the probate calendar sheet: 'Mrs. Anna Gordon is appointed guardian of said minor.' We then find the further statement: 'Bond $300.00. No surety required.' Then the statement: 'Bond filed and approved. Letters issued.' However, the word 'approved' is struck out with a heavy ink line. While a qualification was filed by the guardian, yet no legal bond was ever filed. The bond part of the document filed was eliminated by a heavy ink cross striking out all of the bond section above the qualification.

Statutory provisions concerning guardians for the property of minors are as follows:

'668.3. Guardian of property. If a minor owns property, a guardian must be appointed to manage the same * * *'.

'668.5. Bond and oath of guardian of property. Guardians of the property of a minor shall give bond, with surety to be approved by the court or clerk, in a penalty double the value of the personal estate and of the rents and profits of the real estate of the minor * * *'. (Emphasis ours.)

These statutory provisions are definite and absolute and if there is no compliance with such statutes there is serious question as to the regularity of the guardianship as to the property of the minor.

There is a distinction between the property situation and the guardianship of the person.

Section 668.7 as to guardianship of the person provides: 'The court or judge may require a bond to be given by the guardian of the person of minors * * *.' (Emphasis ours.) We have held the guardian of the person and the guardian of the property of minors need not be the same person. Lawrence v. Thomas, 84 Iowa 362, 51 N.W. 11; Finken v. Porter, 246 Iowa 1345, 1354, 72 N.W.2d 445, 450; Guardianship of Carrick v. Stoddard, 250 Iowa 1181, 98 N.W.2d 315.

II. Anna A. Gordon, after eight years of silence, claimed she did not sign the contract of sale to plaintiffs. Her claim is not too important because her acquiescence when it was signed by the...