Spangler v. Misner

• Decision Date: 17 June 1947
• Docket Number: 47011.
• Citation: 28 N.W.2d 5,238 Iowa 600
• Parties: SPANGLER et al. v. MISNER.
• Court: Iowa Supreme Court

28 N.W.2d 5

238 Iowa 600

SPANGLER et al. v. MISNER.

No. 47011.

Supreme Court of Iowa

June 17, 1947

Hall & Ewalt, of Indianola, for appellant.

J O. Watson, Jr., and M. C. Herrick, both of Indianola, for appellees.

MANTZ Justice.

The action is one of forcible entry and detainer. Therein, the plaintiffs claiming to be the owners of certain real estate in Warren County, Iowa, seek to secure possession thereof from the defendant in possession. The defendant as the surviving joint tenant, vendee, by virtue of a certain contract of purchase entered into in 1941, claims the right to possession of said real estate. Plaintiffs claim that the defendant failed to perform said contract and that they gave due notice of forfeiture thereof in 1946, and followed this with a notice to quit. The defendant admitted the charged default and alleged that one of the owners in interest to the real estate is deceased; that no estate has been opened for her and that the other parties to such contract are not in a position to perform by the giving of the conveyance required by the contract.

The trial court granted plaintiffs the relief prayed for and ordered defendant ousted from the premises. Defendant appealed.

We will briefly summarize so much of the record as is necessary to a correct understanding of the issues involved.

On April 24 1941, Bessie Callison, a widow, and her daughter, Mary Callison, a single person, were owners in fee of a certain tract of land in Warren County, Iowa. Their shares were an undivided one-third and two-thirds, respectively. On that date said owners entered into a contract to sell said real estate to Harold Misner and Bennetta Misner, husband and wife, the latter being a daughter of the said Bessie Callison. The contract provided that the vendees were to be joint tenants and not tenants in common. The agreed purchase price was $13,100 and payments were to be made as follows $1,350 cash, and the balance of $11,750 by vendees assuming and agreeing to pay a $5,800 mortgage on said premises; $200 March 1, 1942, and $200 on the first day of each year thereafter until the balance was paid in full. The contract gave vendees an option to pay the balance at any time before the same became due. Also, said vendees were to pay the installments and interest on said mortgage and 4 1/2% interest per annum on the balance due, same to be paid annually. They were also to pay the taxes and keep the buildings insured.

The contract contained the following provisions: 'And it is expressly agreed by and between the parties hereto that the time and times of payment of said sum of money, interest and taxes as aforesaid is the essence and important part of the contract; and that if any default is made in any of the payments or agreements above mentioned to be performed by the party of the second part in consideration of the damage, injury and expenses thereby resulting, or that may be incurred by or to the party of the first part thereby, the party of the second part shall have no claim in law or equity against the party of the first part, nor to the above mentioned real estate, nor any part thereof; and any claim, or interest, or right, the party of the second part may have had hereunder up to that time by reason thereof, or of any payments and improvements made hereunder, shall on any such default cease and determine and become forfeited, without any declaration of forfeiture, re-entry, or any act of the party of the first part. And if the party of the second part, or any other person or persons, shall be in the possession of said real estate, or any part thereof, he or they will peacefully remove therefrom, or in default thereof, he or they may be treated as tenants holding over unlawfully after the expiration of a lease, and may be ousted and removed as such. But if such sums of money, interest and taxes are paid as aforesaid, promptly at the time aforesaid, the party of the first part will, on receiving said money and interest, execute and deliver, at his own cost and expense a warranty deed of said premises as above agreed and the abstract of title continued to this date.'

The purchasers went into possession of said real estate. Bennetta Misner died in January, 1943. Her husband, Harold Misner, surviving joint tenant under the contract, remained in possession and continued in possession at all times thereafter. Gertryal C. Spangler, plaintiff-appellee, is successor in interest to Bessie Callison.

On June 5, 1946, the vendors in interest of the real estate contract caused a notice of forfeiture to be served upon Harold Misner, advising him of the particulars of default in the contract claimed by such vendees. Such notice specifically set out and enumerated certain terms and conditions of the contract which vendees had not complied with. The items are as follows:

1. Payment of the $1,350 when due when the contract was executed (April 24, 1941).

2. Payment of $200 due March 1, 1942.

3. Payment of $200 due March 1, 1943.

4. Payment of $200 due March 1, 1944.

5. Payment of $200 due March 1, 1945.

6. Payment of $200 due March 1, 1946.

7. Payment of interest at the rate of 4 1/2% per annum payable annually on April 24th of each year commencing April 24, 1942, on $7,300 and payment of 4 1/2% interest on all unpaid installments and installments due thereafter until date of notice.

8. Payment of first half of real estate taxes of 1945 in the sum of $135.33, and interest.

9. Payment of installment due on $5,800 loan assumed, in the amount of $150, due March 1, 1946.

10. Payment of installment of interest on said loan due March 1, 1945 in the sum of $120.38 and interest thereon in the sum of $2.78.

Said notice provided that unless said vendee complied with the contract within thirty days same would be forfeited. After the expiration of the thirty days, and on July 22, 1946, a notice to quit was served upon Harold Misner, the purchaser in possession of the real estate involved, and following his refusal to yield possession thereof, this action was started.

In the petition, appellees alleged that the purchasers under the contract had defaulted and had failed and refused to carry out their obligations therein; also alleged the giving of the notice of forfeiture and the following of this with a notice to quit. Harold Misner, appellant, admitted his default as set forth in appellees' petition, admitted his possession under the contract and his refusal to vacate the premises following notice of forfeiture and notice to quit. He specifically denied that the appellees had fee simple title to the real estate involved at the date of the service of the notice of forfeiture and that to quit; denied that the appellees are now the fee simple owners of the premises and further denied that appellees are now or have been at any time able to carry out their part of the terms of the contract of April 24, 1941. Appellant, in effect, denies the right of appellees to maintain the action, prays that their petition be dismissed, that the notice of forfeiture be cancelled and the notice to quit held to be of no force and effect, and for general equitable relief.

The record shows that Mary Callison, owner of an undivided one-third interest in the real estate involved, died on January 1, 1946, a resident of the State of Illinois, leaving surviving her a spouse, Stanley Jugusczak, and no natural or adopted children and with no property save her interest in the contract of sale involved herein; that no estate has been opened for her. The record shows that Mary Callison and Stanley Jugusczak were married some time after the contract was entered into in 1941. The record shows that the value of her interest in the land involved was not in excess of $4,000.

Summed up, the defense of the appellant, Harold Misner, is that as no estate has been opened for Mary Callison-Jugusczak the appellees are not in a position to make to appellant a warranty deed to said real estate; that the failure to administer upon the estate of Mary Callison-Jugusczak constitutes a cloud upon the title to her share of said property in that creditors could resort to the same to satisfy their claims; that in the absence of a showing that there are no unpaid claims against her estate her husband would be prevented from conveying her interest in the manner called for in the contract.

It is evident from the record that Bennetta Misner and Harold Misner have not performed their obligations as set forth in their contract. The surviving joint tenant admits such failure. When such default was made the grantor, Mary Callison, as well as Bennetta Misner, a vendee, were both living. The notice of forfeiture could have been served at any time after the contract was signed on April 24, 1941. The fact that the said notice of forfeiture was not served until more than five years thereafter certainly did not work hardship or prejudice upon the appellant. During all of this time the contract-vendees had possession of the real estate and secured the income thereof and did nothing by way of performing their contract obligations.

Appellant argues various grounds to sustain his claim that the court erred in granting appellees' petition. The principal grounds argued relate to the claim that appellees' title was defective and that it would be unfair and inequitable to allow the forfeiture to stand.

I. Under the terms of the contract of April 24, 1941, the vendees, Harold Misner and Bennetta Misner, were required to make their down payment of $1,350 and assume the $5,800 mortgage and then pay the balance at the rate of $200 per year. Thus they had the right to carry on for a period of at least thirty years to pay such balance. On the other hand they had an option to pay such...