Stevenson v. Polk

• Decision Date: 11 March 1887
• Citation: 71 Iowa 278,32 N.W. 340
• Parties: STEVENSON AND OTHERS v. POLK AND OTHERS.
• Court: Iowa Supreme Court

71 Iowa 278

32 N.W. 340

STEVENSON AND OTHERS

v.POLK AND OTHERS.

Supreme Court of Iowa.

March 11, 1887.

Appeal from district court, Marion county.

Action in equity. Judgment for the plaintiffs, and defendants appeal.J. S. Polk and J. M. St. John, for appellants.

Bousquet & Earl, for appellees.

SEEVERS, J.

This action was commenced in September, 1883, by Andrew Stevenson, and the petition states that he sold to the defendant Polk, in July, 1881, certain described real estate for $7,850, of which sum $1,200 was paid, and that the said defendant agreed to pay the residue of the purchase money on the first day of March, 1882, with 8 per cent. interest; and it was agreed that said defendant might enter into possession of the real estate, and make improvements thereon; that said agreement was reduced to writing, but no copy was attached, for the reason that it was in possession of defendants; that said Polk executed to said Stevenson his promissory note for the balance of the purchase money, payable on the first day of March, 1882, and has conveyed the said real estate to the Union Land Company, and such corporation is made a defendant; that said Polk and his grantee entered into possession of the premises under the contract, and that such possession has not been in any respect disturbed. Said Stevenson expressed a willingness to fully comply with said agreement on his part, and convey the real estate by warranty deed as he had agreed. The relief asked is that the plaintiff recover judgment against defendant Polk for the purchase money due, with interest, and that a lien on said real estate in his favor be established, and the defendants' equity of redemption foreclosed, and the premises sold on special execution, and that a general execution issue for any balance of said judgment remaining unsatisfied against said defendant Polk. Afterwards the death of said Stevenson was suggested, and the action revived in the name of B. B. Stevenson, administrator of the estate, as plaintiff.

The defendant Polk filed a separate answer, denying that he entered into possession of the real estate; but he admitted that he, as trustee for the Union Land Company, had purchased such real estate under a written contract, and that said Stevenson well knew that said contract was made by him as such trustee, and not in his individual capacity. The conveyance to the Union Land Company was admitted, but that the same was done in order to discharge and relieve him of the trust, and he asked that the action be dismissed.

The land company answered the petition, and denied all allegations not admitted, and alleged that said Polk, as its trustee and agent, purchased of the intestate certain described real estate, upon certain conditions, and that the contract was reduced to writing. It is sufficient to state here that said defendant pleaded the intestate and plaintiffs had failed to comply with said contract on their part. It is admitted that said defendant entered into possessionunder the contract, and is still in possession; that afterwards said Polk fully executed his trust, and conveyed the real estate to his co-defendant; that defendant has been at all times ready and willing to comply with the contract, but that plaintiff's intestate, at no time prior to bringing the action, was seized of the title to said real estate in fee-simple, unincumbered, and that said intestate at all times has been unable to perform the contract on his part, and that plainliff is unable to comply therewith; that on or about March 12, 1882, said intestate furnished defendant's attorney an abstract of the title to the real estate, which showed that the title to a large part thereof was defective, and other portions incumbered, of which defects the intestate was duly advised; and thereafter the defendant waited over two years for the intestate to perfect his title, and, failing to do so, the defendant, in September, 1883, notified the intestate it would wait no longer for a title, and that it would insist on a rescission of the contract, and then offered and declared the same rescinded, and offered to restore the plaintiff to the possession of the real estate, and to account for rents and profits, and demanded repayment of the money paid on said contract, which the intestate declined to do, but insisted defendant should accept a deed (though none was tendered) conveying an imperfect title. The said defendant also pleaded that the chief inducement for the purchase of the land was for the purpose of laying out a town-site at a proposed station on the Des Moines & St. Louis Railroad, then in process of construction, which was well known to the intestate, and that, under a statute, no such town could be laid off, and the plat recorded, unless there was a perfect record title in the proprietors; and, because of its inability to lay off and record the plat of such town, it suffered special damage. Wherefore the said defendant asked that its answer be treated as a cross-petition, and that the contract be rescinded, and the plaintiff be required to pay the defendant $1,200, with interest, and that defendant have a lien on the real estate therefor; that an accounting of the rents and profits be had, and the damages of the defendants ascertained, and that defendant have such other relief as it may be entitled to.

The administrator filed a replication, and denied that Polk purchased the land as trustee for his co-defendant, and pleaded that the title was perfect in every respect in the intestate, except a mortgage which had been paid; and that the intestate and his grantors have had actual, open, notorious, and peaceable possession of the premises for more than ten years; and all affirmative allegations to the cross-petition were denied.

There is a discrepancy in the land as described in the petition and the answer and contract. As to this, it was pleaded in the replication that a mistake had been made in describing the land in the contract, and it was asked that the same be reformed so as to conform to the intention of the parties.

The widow and heirs at law of the intestate intervened, and were made plaintiffs, and adopted the prior pleadings filed by the intestate and administrator, and asked the same relief.

The defendants, in a subsequent pleading, denied there was any mistake in describing the land purchased in the contract, and denied that the intervenors were the widow and heirs at law of the intestate. There were two amendments to the petition filed, which demanded the same relief as the petition. Substantially the allegations therein were denied.

The foregoing lengthy statement is deemed necessary to present, in a general way, the issues. The contention of the several parties will now be referred to in the order, or nearly so, as presented by counsel.

1. The obligation executed by the defendant Polk is in these words:

“DES MOINES, July 23, 1881.

Know all men by these presents that I acknowledge myself indebted to Andrew Stevenson in the sum of six thousand six hundred and fifty, ($6,650,) which I agree to pay the said Stevenson on or before March 1, 1882, on condition that the said Stevenson and wife shall fully comply with their title bond of even date herewith, wherein they agree to convey to me certain real estate lying and being in Marion county, Iowa. This obligation to draw interest at the rate of 8 per cent. per annum after maturity, provided that the said Stevenson and wife shall comply with their title bond aforesaid. In witness whereof I have hereunto set my hand the day and date first above written.

J. S. POLK, Trustee.”

The bond referred to was executed by the intestate and his wife at the same time as the foregoing, and recites that they are held and firmly bound, in a named penal sum of money, unto J. S. Polk, trustee, and it recites that the intestate and his wife have sold unto the said J. S. Polk certain described land, and contains this provision: “And if the above-bound Andrew and Maria Stevenson shall make, execute, and deliver, or cause to be made, executed, and delivered, a good and sufficient warranty deed and abstract in fee-simple title to the above-described real estate, then this obligation shall be null and void, otherwise to remain in full force, both in law and equity; * * * and it is hereby further expressly agreed, by and between said parties, * * * that the party of the second part shall have the right to enter on said land, and make changes and improvements as he may deem best for his interests.”

It is provided by statute that where the vendor of real estate has given a bond to convey the same on the payment of money, he may “file his petition, asking the court to require the purchaser to perform his contract, or foreclose and sell his interest in the property.” The vendee shall be treated as a mortgagor, and his rights may be foreclosed in the same manner. Code, §§ 3329, 3330.

The plaintiffs contend that this action is prosecuted under and in accordance with this statute, and the contention of the defendants is that the action is for specified performance. We are clearly of the opinion the action is brought under the statute to recover the purchase money of real estate, and to foreclose the interest of the vendee therein, and that no tender of a conveyance is required. This, we think, is apparent, for the reason the vendee is to be treated as a mortgagor, and his rights to the real estate foreclosed in the same manner; and it has been so held in Winton v. Sherman, 20 Iowa, 295, and Montgomery v. Gibbs, 40 Iowa, 652. The reason of the rule is that a court of equity can so mould the judgment or decree as to fully protect the rights of the vendee.

Appellants cite and rely on School-district No. 2 v. Rogers, 8 Iowa, 316, and Berryhill v. Byington, 10 Iowa, 223. These were actions at law, and in such actions a different rule prevails.

2. The district court rendered a personal judgment against Mr. Polk on the...