Sherbonday v. Surring
| Decision Date | 23 June 1922 |
| Docket Number | 33737 |
| Citation | 188 N.W. 831,194 Iowa 203 |
| Parties | JACOB SHERBONDAY, Appellant, v. WILLIAM SURRING et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 23, 1922.
Appeal from Allamakee District Court.--H. E. TAYLOR, Judge.
ACTION to quiet title. The trial court found for defendants. Plaintiff appeals.
Affirmed.
Stilwell & Stilwell and E. R. Acres, for appellant.
William S. Hart, for appellees.
Defendant Augusta is the wife of defendant William Surring. Other defendants brought in as defendants, on the application of defendants Surring, are the children of plaintiff's wife and her former husband. The former husband, Butler, and defendant Augusta Surring were brother and sister, so that defendant William Surring was the brother-in-law of plaintiff's wife, and an uncle by marriage of her children. The children join with Surring in the claims set up by him in his answer, and make no complaint that the court established the lien in favor of Surring for the $ 400 and interest. Plaintiff argues that such claim is barred by the statute and by laches; but it is no affair of his whether the lien is or is not established, unless, perhaps, plaintiff has shown that he is the owner of the land. The trial court decreed that the claim of Surring should not be a lien on the life estate of plaintiff's wife, and that such lien could not be enforced against or terminate the life tenancy held by plaintiff. The record title to the 80 acres in question is in defendant William Surring by warranty deed from William Butler and wife, Minnie, now the wife of plaintiff. This deed was executed, delivered, and recorded early in 1885. It is not quite clear from the evidence what the consideration was. Defendant Surring assumed and paid off a mortgage of $ 600, and paid off the Ulrich note which he had signed with Butler. As we understand it, the consideration was $ 900, $ 600 of which was the mortgage. Plaintiff so claims in argument. When defendant agreed with plaintiff's wife that she should have a life estate and the children the land, subject to the life estate, the consideration was what defendant Surring then had in the place, and interest. He had paid out something for improving it, getting out stumps, etc. Defendant charged no profit, and says that he thought the land was worth $ 2,000, but that his wife wanted him to do the best he could for his wife's only brother; that he did not charge $ 2,000 because he did not have that amount in it. Defendant Surring says that, after he bought the place, there was about $ 400 left in defendant's hands, after paying bills and moving Mrs. Butler onto the place. The consideration for the original purchase by Butler, about 1878, was $ 800. Butler traded a horse as first payment, and gave a note secured by defendant Surring for a part of it, and a mortgage back to Butler's grantor for the balance. Butler built a cabin, and started to clear up a home. The first note matured, and he appealed to the defendant for help. Defendant referred him to other parties, from whom Butler was unable to secure a loan; and Surring then gave his own note for the required amount. One of Butler's horses died, and he told Surring that he was going to throw up the farm, with his debts, and move to town and work for wages. To this Surring objected, and asked Butler where it would leave him on the notes; and thereupon Butler agreed to deed the farm to Surring, to get his money out of it, if he could. Thereupon, Butler and wife deeded the farm to Surring, under the agreement, as defendants say, that Butler could buy the farm back in a year for what Surring had in it. Before Butler's death, he returned to Surring the option to repurchase, and by agreement the option was destroyed. Surring took possession of the land as soon as Butler moved off, and hired a man to dig stumps.
It is claimed by Mrs. Sherbonday that her husband had $ 1,000 when they came from Wisconsin and first bought the land; but, under all the evidence, we think this is not the fact, and that, on the contrary, he was substantially without means, except his team and emigrant's outfit. Her own evidence, her petition for guardianship, showing but $ 75 as property of the children, other exhibits, and defendants' evidence quite clearly show that her version of the matter as to his worth when they came to Iowa is not the fact. Mrs. Sherbonday also claims that, when she bought the property back from Surring, when the life estate paper was executed, she paid for the property in full, and that defendant told her there was nothing owing him; that she thought she owned the property. Plaintiff says he thought she owned it, at the time she executed the deeds to him. We shall not go into the details of the evidence as to this; but from all the evidence we think that the weight of the evidence and the circumstances are against her claim that the land was then all paid for, or that she thought she owned the land. We shall see later that she and her husband occupied the land for many years under the written agreement that she was to have a life estate, and it was not until they proposed to sell the land to Thomas that she tried to get a deed to all the property, instead of her life estate. The value of the land at the time of the trial was about $ 6,000. When it was proposed to sell it to Thomas, it was valued at $ 4,800. Defendant says he gave her the paper in regard to the life estate the year he moved her back on the farm.
In 1890, plaintiff's wife executed to plaintiff a warranty deed to the land, and acknowledged it as Minnie Butler. On the same day, she executed a correction deed, and acknowledged it as Minnie Sherbonday. The first deed was recorded in January, 1892, and the correction deed in May of the same year. The appellant seeks to overcome defendant's record title, claiming that, under claim of right, color of title, and adverse possession, he is the owner of the property; and he asks that his title be quieted.
When Butler and his wife, Minnie, executed the deed to Surring in 1885, it was understood that they might repurchase the land within one year, according to the testimony of some of the witnesses, and within three years, according to others. Mrs Sherbonday's then husband, Butler, was drowned, soon after the execution of the deed, leaving six young children. It seems to be conceded that there was no legal liability upon Butler's employer for his death, but he gave a check, which, according to the testimony of defendant Surring and plaintiff's wife, was $ 800, $ 200 of which was for the benefit of the widow, Minnie, and $ 100 each was for the children. There is a conflict in the evidence as to whether the check was made payable to defendant Surring, as he claims, or to the widow, Minnie. The lawyer Quigley, acting for some of the parties at that time, testifying for plaintiff, says that the check was for $ 600, and that there was nothing said about its being part for the widow and part for the children. The transaction was about 30 years before he testified. William Butler was not a financial success. He left some bills unpaid, and no administration was taken out. It is testified by defendant Surring, and conceded by plaintiff's wife, as a witness for plaintiff, that Surring did, with her consent and approval, pay some of the bills of deceased. There is some dispute between them as to the amount. Surring also paid for provisions for her and the family, bought a cow or two, and so on, which substantially exhausted the widow's part of the money received; and we take it that a small amount, at least, of the children's share was expended for clothing and other things. Though no administration was taken out, we suppose that a part of the recovery for Butler's death would go to the children, had there been administration. In any event, that is a matter between the children and Surring, and they are not complaining. The widow and children lived in town for a time, after her husband's death. Surring suggested that she go to her people in Wisconsin, but she preferred to move back onto the farm; and Surring says he moved her back onto the land in question, with his own team. She claims that Surring agreed to give her a deed to the property. This he denies; and he claims (and his contention in regard to this is sustained by the weight of the evidence) that, instead of a deed, he gave her a writing, by which the widow, Minnie, was to have a life estate in the property, and the children were to own it, subject to her life estate and subject to a lien in favor of Surring of $ 400 and interest, balance due him on the purchase price, when he reconveyed the property, or rather, gave plaintiff a deed that she was to have a life estate and the children were to own the property. Surring says he told her that the money going into the land was the children's money, and that she would have no interest, except the right to have it for a home as long as she lived; that that is all he ever told her; and that she said that was all she wanted. Surring says this contract was all she ever had from him. The $ 400 just referred to represents the amount still owed to him for what he had in the land. He also claims that, after the settlement for Butler's death, he had about $ 400, or a little more, left in his hands, belonging to the children; and for this, though the property was worth more, they were to have the land. The writing given by Surring to Mrs. Butler so stated. By reason of this, he claims that the children own the land, and that he holds the legal title in trust for them, subject to her life estate. The arrangement was somewhat informal, but the mother was perfectly satisfied with...
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