Sheffield Milling Co. v. Heitzman
| Decision Date | 18 October 1921 |
| Docket Number | 34187 |
| Citation | 184 N.W. 631,192 Iowa 1288 |
| Parties | SHEFFIELD MILLING COMPANY, Appellant, v. J. G. HEITZMAN et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 20, 1922.
Appeal from Lee District Court.--JOHN E. CRAIG, Judge.
SUIT in equity, to subject certain property occupied as a homestead by J. G. Heitzman and Mabel Heitzman, husband and wife, to the satisfaction of two judgments against J. G. Heitzman. Relief was denied plaintiff, and it appeals. Facts appear in the opinion.
Affirmed.
John L Benbow, for appellant.
Herminghausen & Herminghausen, for appellees.
On the 17th day of February, 1903, appellant recovered judgment in the district court of Lee County against appellee J. G. Heitzman, for $ 210.21 and costs of suit. On the 9th day of January, 1906, appellant recovered another judgment against J. G. Heitzman, appellee, in the sum of $ 388.19 and costs. At the time these judgments were entered, J. G. Heitzman was a single man, and remained single until 1908, when he married Mabel Heitzman, appellee; and they now have four children, ranging in age from two and one-half years to eleven years. J. G. Heitzman was formerly a real estate agent, and is now a clerk in a store. In the spring of 1916, the Heitzmans were living in a rented house. Mabel Heitzman had some money, and expected soon to inherit some money from her mother, who was suffering from cancer and could live but a short time, and who did pass away in a few months. Her mother carried a policy of life insurance, and owned two houses in Fort Madison. She also expected some money from her grandmother, which she received. On the death of her mother, she did receive $ 500 of the life insurance. She received $ 180 and $ 650 from the sale of some property of her mother's estate, and she also received rental from property of which her mother died seized, of from $ 12 to $ 15 a month, and she continues to receive it. She also received $ 100 from her grandmother. She also received $ 25 per month for rental of the homestead property for some three months after it was purchased, and before they took possession.
J. G. Heitzman had no money,--was insolvent. Upon the expectation of Mabel Heitzman to receive money from her mother's estate and from her grandmother, which she did afterwards receive, negotiations were begun with H. J. Kennedy, appellee, for the purchase of the property to be occupied by them as a homestead, which they did purchase for $ 2,500. A contract of purchase of the property was made and signed, from Kennedy to J. G. Heitzman, or Jerome Heitzman, the same person. The contract was prepared by Kennedy's lawyer. It was signed by both Jerome and Mabel Heitzman, at a bank where Kennedy was cashier. When they were returning home from signing the contract, Mabel said to Jerome, "Why is that contract not made in my name?" Jerome said, "It is only a contract, and as soon as we get a deed to it, it will be made out correctly in your name." Afterwards, she spoke to him in the same way, and Jerome made the same answer. The contract of purchase was made on the 20th day of May, 1916, and a down payment was made of $ 500. The balance was to be paid in installments of $ 20 on the 20th day of each month, and thereafter until fully paid, commencing on June 20, 1916; and a promissory note was given by J. G. Heitzman and Mabel Heitzman for the balance of the purchase price. All installments due were paid, up to the time of this trial. On March 19, 1918, "for value received," J. G. Heitzman assigned the contract to Mabel Heitzman, in writing, and at the same time she assumed, in writing, all obligations of J. G. Heitzman under and by virtue of the contract; and on the same day, J. G. Heitzman, in consideration of "one dollar, love, and affection and other good and valuable considerations," executed and delivered to Mabel Heitzman a quitclaim deed to the premises.
This action was begun May 29, 1918, about two months after the assignment of the contract and the quitclaim deed were made by J. G. Heitzman to Mabel Heitzman. In the original petition, appellant alleged that appellee J. G. Heitzman had purchased from H. J. Kennedy, who held the legal title, the premises in controversy, and was the owner of an equity and interest in the property; that Kennedy held the property, subject to the payment by J. G. Heitzman of the remainder of the purchase price; that the interest of J. G. Heitzman in and to the property had been acquired subsequent to the recovery of the judgments of the plaintiff; and that the equity and interest in the realty of J. G. Heitzman was liable, in equity, for the payment and satisfaction of the judgments. Appellant prayed for judgment and decree establishing the judgments as liens against the interest of J. G. Heitzman in and to the property; that the balance due Kennedy, holder of the legal title, be ascertained; and that the property be sold, and out of the proceeds of the sale the balance of the purchase price due Kennedy be first paid; and that the remainder of the proceeds be applied in satisfaction of plaintiff's judgments.
In an amended petition, plaintiff alleged, on information, not having access to the contract, that the contract provided that the title to the premises would be held by Kennedy until the whole or a large part of the consideration was paid, and that then the title was to be conveyed by Kennedy to Mabel Heitzman; that appellee J. G. Heitzman had, in fact, paid a large part of the purchase price; and that J. G. Heitzman had made the contract and the payments thereon in part performance for the purpose of hindering, delaying, and preventing the satisfaction of plaintiff's judgments out of the realty; and that J. G. Heitzman was insolvent.
Appellees answered separately, but their answers were substantially alike. They admitted rendition of the judgments, but denied that J. G. Heitzman, appellee, was the owner of an equitable or any other interest in the property in controversy; denied that he ever had any interest in the property, equitable or otherwise. Appellees averred that, about May 20, 1916, J. G Heitzman negotiated for and on behalf of Mabel Heitzman, his wife, to purchase the real estate in controversy as a homestead for said Mabel Heitzman and himself and their family; that a contract was made and entered into on May 20, 1916, between Kennedy, appellee, and Mabel Heitzman, appellee; that, by inadvertence or mistake, the contract was written in form only as though J. G. Heitzman, appellee, was the party in interest; but that, in fact and in deed, the said Mabel Heitzman was to furnish the consideration for the purchase of said real estate, and did furnish the consideration thus far paid towards the purchase of said real estate; and that Mabel Heitzman was, at the time, the real purchaser; that J. G. Heitzman, in effect, had and has no interest in the property other than as the husband of Mabel Heitzman; that, in pursuance of the purchase of the property as a homestead, J. G. Heitzman and Mabel Heitzman, with their family, constituted of four children,...
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