Saunders v. Wilson

• Decision Date: 26 June 1928
• Docket Number: No. 38580.,38580.
• Citation: 207 Iowa 526,220 N.W. 344
• Parties: SAUNDERS v. WILSON.
• Court: Iowa Supreme Court

207 Iowa 526

220 N.W. 344

SAUNDERS

v.WILSON.

No. 38580.

Supreme Court of Iowa.

June 26, 1928.

Appeal from District Court, Pocahontas County; D. F. Coyle, Judge.

Action at law upon promissory notes and other written obligations, aided by attachment. A writ of attachment was sued out on the ground of the nonresidence of the defendant and the same was levied upon defendant's interest in certain described lands in Pocahontas, Pottawattamie, and Cherokee counties. The defendant appeared to the action and moved to dissolve the attachment. This motion was sustained over the objection of the plaintiff. No defense was interposed to the cause of action, and personal judgment was entered against the defendant for somewhat in excess of $30,000. From the order sustaining the motion to dissolve the attachment, the plaintiff has appealed. Affirmed.

Albert and De Graff, JJ., dissenting.Stipp, Perry, Bannister & Starzinger and Donald D. Holdoegel, all of Des Moines, for appellant.

Heald, Cook & Heald, of Spencer, for appellee.

EVANS, J.

The foregoing statement of the ruling appealed from is suggestive of simplicity, but it furnishes no indication of the question actually litigated between the parties. As ground for dissolving the attachment, the defendant asserted in his motion, and the court held, that he had no other interest in the real estate attached than that of the contingent remainder under the will of Joseph Boiler, deceased.

The resisting contention of the plaintiff was that the defendant had a vested interest in said land under the will of Joseph Boiler, though conceding it to be subject to defeasance by condition subsequent.

In his motion to dissolve, the defendant incorporated paragraph 7 of the will of Joseph Boiler, as follows:

“The above-mentioned devisees, Chester D. Boiler, Nora Ella Boiler, Ada A. Boiler and Nettie A. Wilson, formerly Nettie A. Boiler, being my only children, it is my further will that at the death of either of them, the specific real property to each one above devised shall descend to the child or children of each individual devisee in fee simple, share and share alike, but if at the time of the decease of either of my said children, devisees aforesaid, they have no surviving children then and in that case it is my will that the specified real property shall descend to my remaining surviving children, above mentioned, in fee simple, share and share alike. Provided however, that in case any one of my said children aforesaid shall have previously died leaving a child or children surviving them, then and in that case it is my will that said child or children shall take in equal shares as representatives of their deceased parents.”

In sustaining the motion, the district court found as a conclusion of fact and law that the defendant held only a contingent remainder in the land and that the same was not subject to judicial sale. Incorporated in the order sustaining the motion to dissolve, and likewise in the judgment entry, was the further proviso:

“That no execution either general or special shall issue against said land or any part thereof, and it is further ordered, adjudged, and decreed that said land nor any part thereof shall not be sold under general or special execution so long as defendant's interest therein shall remain a contingent remainder.”

It will be noted that the appeal is simply from an order dissolving an attachment in a law action. Whether the order is appealable is a question of doubt in our mind. The plaintiff has his personal judgment, and his lien is equal to that of an attachment. The question whether the attachment should have been dissolved has doubtless become moot. At least, there is nothing in the record to indicate that the order of the court in dissolving the attachment has worked any prejudice to the plaintiff. In view, however, of the broad scope of the order, as entered, and that the parties are mutually presenting the issue upon the question whether the defendant has a vested remainder or only a contingent one, we proceed to the consideration of that question.

[1] I. We have already set forth paragraph 7 of the will of Joseph Boiler. It should be further noted that by paragraphs 2, 3, 4, and 5 of such will, Joseph Boiler devised to each of his four children a life estate in certain parcels of land specifically described. The quantity thus devised severally to each of his children was approximately 900 acres. The lands attached herein were devised for life by paragraph 5 to the daughter Nettie Wilson, who is the mother of this defendant.It appears that the testator died in 1900; that at that time the defendant Wilson was the only child of the daughter Nettie Wilson; that since said date two other children have been born to her and are now living; that no child has been yet born to any other of the children of the testator. Paragraph 7 is to be read in the light of these facts. It will be noted that by paragraph 7, the remainder is devised to the “surviving children,” if any, of the life tenant at the time of her death; if no child of the life tenant survive her, then to the surviving children of the testator and to the children of those deceased. The district court held that the remainder thus devised to this defendant as a child of Nettie Wilson was a contingent one. Such holding is supported by our following cases: Williamson v. Youngs, 200 Iowa, 672, 203 N. W. 28;In re Wolber, 194 Iowa, 311, 189 N. W. 782;Sutherland v. Green, 191 Iowa, 711, 182 N. W. 785;Horner v. Haase, 177 Iowa, 115, 158 N. W. 548;Baker v. Hibbs, 167 Iowa, 174, 149 N. W. 85;Birdsall v. Birdsall, 157 Iowa, 363, 132 N. W. 809, 36 L. R. A. (N. S.) 1121.

In Williamson v. Youngs, the remainder under consideration was devised by substitution to the issue of a predeceased child of the life tenant. In re Wolber, it was likewise to the issue of a predeceased child of the life tenant. In Sutherland v. Green, it was to the “surviving children” of the life tenant. In Horner v. Haase, it was to the children “living” at the time of death of life tenant and to the issue of deceased children. In Birdsall v. Birdsall, it was to the children of the life tenant “then living” and to the issue of those deceased. Pursuant to our former holdings therefore, the district court properly held the remainder to be contingent.

[2] II. It remains to consider the question whether a contingent remainder is subject to seizure and judicial sale in favor of a creditor. It is the contention of the appellant that all interest in land, whether contingent or otherwise, as a general rule is subject to seizure and sale on general execution. 23 C. J. 335. The argument is that a contingent remainder is alienable by the voluntary contract of the remainderman, and that therefore it must necessarily be subject to execution. Such is the holding in some jurisdictions. White v. McPheeters, 75 Mo. 286;De Haas v. Bunn, 2 Pa. 335, 44 Am. Dec. 201;Wood v. Watson, 20 R. I. 223, 37 A. 1030. Some of these holdings are predicated upon statutory provisions.

It is doubtless true in this state that a voluntary contract by a contingent remainderman to convey his interest may, after the vesting, be enforced in equity as an executory contract. Such enforcement, however, is predicated to some extent upon equitable grounds, such as the receipt of consideration and benefit which are deemed binding upon the conscience of the chancellor and of the litigants. It is true, also, that if the contingent remainderman sells with a covenant of warranty, such warranty becomes effective, under the statute, to carry to the purchaser the future acquisition of the seller by the vesting of his remainder. It does not necessarily follow, however, that a legal transfer of such contingent remainder may be obtained by an execution sale. Ordinarily the rights acquired by an execution purchaser are legal rather than equitable. We have twice had the question under consideration, without making a very definite pronouncement thereon. Taylor v. Taylor, 118 Iowa, 407, 92 N. W. 71;McDonald v. Bank, 123 Iowa, 413, 98 N. W. 1025. In the Taylor Case we said:

“Under our statute judgments ‘are liens upon the real estate owned by defendants' (section 3801, Code) and real estate ‘includes lands, tenements, hereditaments, and all rights thereto and interests therein’ (paragraph 8, section 48, Code). These sections contemplate a present tangible right to or interest in the land; that is, it must be owned by the judgment defendant at the very time the lien is claimed to have attached. The evolution of the law concerning the assignability of contingent remainders need only be referred to. It is enough to say that they are now generally held assignable. Miller v. Emans 19 N. W. 384;Bodenhamer v. Welch, 89 N. C. 81. The possible exception is where the uncertainty is with respect to the person. Such a transfer, it seems, will not be upheld in law, though often sustained in equity. It is not a possibility coupled with an interest. 4 Kent, Commentaries, 252. No one can be said to own it. Several may have the chance of acquiring it. Any right the remainderman may have is said to be in abeyance. Says Mr. Washburn, in his work on Real Property: ‘For a long time a contingent remainder was not supposed to be the subject of alienation, because it was rather the possibility of an estate, like the possibility of an heir at law, for instance, having the estate when his ancestor shall have died. But it is now settled that when the contingency upon which the remainder is to vest is not in respect to the person, but the event, when the person is ascertained who is to take if the event happens, the remainder may be granted or devised, and the grantee or devisee will come into the place of the grantor or devisor, with his chance of having the estate. But if the contingency is in the person who is to take,--as where the remainder is limited to the heirs of one now alive,--there is no one...