Sheppard v. Messenger

• Decision Date: 15 December 1898
• Citation: 77 N.W. 515,107 Iowa 717
• Parties: SHEPPARD v. MESSENGER ET AL.
• Court: Iowa Supreme Court

107 Iowa 717

77 N.W. 515

SHEPPARD

v.MESSENGER ET AL.

Supreme Court of Iowa.

Dec. 15, 1898.

Appeal from district court, Lee county; Henry Bank, Jr., Judge.

Action in equity to redeem real property held in trust for the payment of a debt, to procure the conveyance to the plaintiff of the legal title to the property, and to quiet the title in her. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiff appeals. Reversed.

Given, J., dissenting.H. I. Sawyer and H. Scott Howell & Son, for appellant.

Anderson & Waggoner, for appellees.

ROBINSON, J.

In April, 1890, Mrs. Louisa Grimsley purchased of Eliza Malcolm the front 50 feet of three lots in the city of Keokuk, which are duly described, for $1,650. Of that sum Mrs. Grimsley paid $650, and received a contract for the conveyance of the property, which she caused to be made on her part in the name of her brother, George W. Messenger. She afterwards erected a house on the property, and upon the full payment of the purchase price a deed for the property was executed to her brother in February, 1893. He died testate, and his will, which was duly probated, recited that he held the legal title to a house and lot in the town of Bonaparte, in Van Buren county, and a title to another house and lot in the city of Keokuk, and a certificate for five shares of stock in the Farmers' & Traders' Bank in Bonaparte, in trust for his sister, Louisa Grimsley, subject to an indebtedness to him from her for $400, and directing the transfer to her, her heirs and assigns, of the property described, on the payment of the sum specified to his estate. The report of the executrix of the decedent, who is also a defendant in this action, shows that she had offered to transfer the certificate of stock and to convey the real property to Mrs. Grimsley upon the payment by her of the $400, but that the latter had declined the offer, and had not paid the money. Thereupon the executrix was ordered to transfer the certificate of stock and convey the real property to the defendant George H. Messenger, who is the residuary legatee or devisee of the will, to be held by him subject to any interest which Mrs. Grimsley had therein; and that was done. In December, 1893, Evans & Sheppard obtained in the district court of Lee county a decree against Mrs. Grimsley for $43 and costs of suit taxed at $15, and foreclosing a mechanic's lien therefor on the Keokuk property in question. In April, 1894, a special execution of the sale of the property was issued, and it was advertised for sale. On the 10th day of May, 1894, Mrs. Grimsley paid to the clerk of the court $44, leaving a balance of 82 cents and the costs due. Five days later the property was sold under the execution for $31.72, that being the amount required to satisfy the judgment and accrued costs. Redemption not having been made, a sheriff's deed to the property was issued in due time to the purchaser, W. C. Howell, and in October, 1895, he conveyed the property to the plaintiff. The purpose of this action is to quiet in the plaintiff the title of the property, and she offers to pay to George H. Messenger the sum of $400 if he is found entitled thereto, and in that case the plaintiff asks to be subrogated to all the rights he may have in the property held to secure the payment of that sum. It does not appear that either the decedent, the executrix of his estate, or George H. Messenger, was made a party to the foreclosure proceedings; and the real claim of the plaintiff is that she is entitled to pay the $400 for which George H. Messenger holds the certificate of stock and the house and lot in Bonaparte and the house and parts of lots in Keokuk, and, when payment is made, to be subrogated to his rights in that property; while the claim of Messenger is that he is entitled to satisfy and discharge the interest of the plaintiff in the property by paying her the amount for which the Keokuk property sold, with interest. The district court rendered a decree in harmony with Messenger's claim, and fixed the amount he was required to pay at $36.75. Mrs. Grimsley was also made a party defendant, but she filed an answer, in which she alleged that she had transferred her equity in the property to Mahala Smith. By the decree of the district court she was dismissed as a defendant.

1. The will of the testator described the Keokuk property as “a certain house and lot on Blonde street,” but the property in controversy is located on Seventh and Morgan streets, and it is said, for that reason, that nothing can be claimed for Mrs. Grimsley under the will. We need not determine the effect of the error, if any, in the description contained in the will. No issue in regard to it is presented by the pleadings, and, if the will be not considered, the evidence remains sufficient to show that Mrs. Grimsley was the equitable owner of the property at the time Evans & Sheppard became entitled to a mechanic's lien, although the legal title was in her brother; and that the title of the defendant Messenger appears to be based upon the will and the order of court; hence, if the will is defective in the respect claimed, the defect might affect his title, but would not affect that of the plaintiff. It was held in Clark v. Parker, 58 Iowa, 509, 12 N. W. 553, that a mechanic's lien will attach to an equitable title to real property held by a contract for...