Thorne v. Reiser, 48362

• Decision Date: 17 November 1953
• Docket Number: No. 48362,48362
• Citation: 245 Iowa 123,60 N.W.2d 784
• Parties: THORNE et al. v. REISER et ux.
• Court: Iowa Supreme Court

Page 784

60 N.W.2d 784

245 Iowa 123

THORNE et al. v. REISER et ux.

No. 48362.

Supreme Court of Iowa.

Nov. 17, 1953.

Kepford, Balch & Kepford, Waterloo, for appellants.

Geiser, Donohue & Wilkins, New Hampton, for appellees.

SMITH, Justice.

Sadie M. Reiser, a widow, 70 years old and childless, on February 2, 1952, executed a warranty deed of her eighty acre farm to defendants (husband and wife) 'as joint tenants and not as tenants in common.' At the same time the parties signed an agreement which provided in part as follows:

'* * * Whereas, the said Sadie Reiser party of the first part, having now arrived at an advanced age in life, desires the parties of the second part (defendants herein) to rent or sell their farm and come to her home and live with and care for her so that she can be comfortable the remainder of her life, and to that end has requested of the second parties to so make arrangements for same; and

'Whereas, it is the desire of the parties of the second part * * * to comply with (her) wishes and (they) are now in the process of renting their said farm and home for the purpose of moving to the home of the first party and caring for her during the rest of her natural life;

'Now Therefore, it is agreed by and between parties hereto that in consideration of the second parties moving from their farm and home and residing with the said party of the first part, the said party * * * is this date executing to the parties of the second part a warranty deed conveying to them free and clear of all encumbrances the following described real estate: * * *'

The instrument further recited that the deed was the same day placed in escrow to be held until grantor's death 'at which time the said deed shall be turned over to the parties of the second part for proper recording' and that it 'may not be recalled' by grantor if grantees 'shall adequately furnish food, clothing, and lodging' for grantor 'and shall see to it that she is comfortably cared for during the rest of her natural life'; also that the 'care and maintenance' to be furnished 'shall consist of all midical care during her lifetime with the exception of the expense of her last illness and funeral expenses which will be paid for out of the insurance proceeds * * * as well as the sale of her bank stock and/or any checking or savings account which is likewise being disposed of by will at this time.'

The contract also provided defendants would have the income from, and pay all expenses for the care and preservation of, the farm 'from and after the date of this contract.'

The will, executed contemporaneously, gave defendants 'all of my personal household belongings together with any and all personal property located on the premises upon which I now reside'; and gave plaintiffs Hazel Knapp and Frances Leone any insurance money, bank stock and bank accounts remaining after payment of funeral, last illness and administration expenses and all just claims against the estate. There was no residuary clause. Defendant Everett Reiser was named sole executor without bond and with direction to employ the escrow agent, who drew the papers, as attorney for the estate.

Mrs. Sadie Reiser was burned to death while alone in her home. Her body was found the morning of April 18, 1952. The escrow agent delivered the deed to defendants April 21. The present suit was thereafter commenced by plaintiffs who are shown to be decedent's only heirs. Defendant Everett is a nephew of her deceased husband.

The trial court correctly summarized the petition as tendering these issues: Improper delivery of deed; non-performance of condition precedent by defendants and consequent failure of consideration; undue influence and confidential relationship; and a request for account of rentals. The court disposed of the request for accounting as there was no testimony with reference to rentals, and pointed out that such accounting could be taken care of in another proceeding.

With reference to the hasty delivery of the deed after grantor's death, the court held the escrow agent should have made inquiry as to whether defendants had performed the conditions precedent, but that his failure so to do was without prejudice to either party since the deed may, upon proper showing, be set aside with the same legal effect as though it had not been delivered.

The court then stated the principal issues to be the questions of confidential relationship and the sufficiency of the showing of performance by defendants; and in effect held against defendants on both. The formal judgment and decree in favor of plaintiffs, however, was expressly based on insufficient performance by defendants 'to entitle them to the delivery of the deed.' The deed was set aside and cancelled.

I. We are confronted at the outset by a situation becoming--or unfortunately already become--all too frequent, viz., failure to comply with Rule 340, 58 I.C.A.Rules of Civil Procedure. A motion to dismiss was filed June 3, 1953, six days after the filing of the printed Record.

We recently sustained a motion to dimiss in a somewhat similar case, October 20, 1953. Lange v. Myers, Iowa, 60 N.W.2d 526. The disregard of our rules was no worse in that case than is the situation here. However, a motion to dismiss was made at an earlier stage so that we were able, by sustaining it, to forestall and prevent the printing of the Record. The problem here is more complex and distressing. The Record was already printed and filed before our attention was called to the matter.

The trial court realized the objectionable nature of the situation and pointed out: 'A comparison of the (typewritten) abstract with the reporter's transcript leads the court to believe that from 75 to 90 per cent of the transcript has been copied verbatim in question and answer form into the abstract of record.' The ruling settling the Record (dated April 29) states: 'This situation was called to the attention of counsel for appellants on or about April 15, 1953, who have indicated that they believe that their case cannot be fully and properly submitted to the Supreme Court in any more condensed form.' (Italics supplied.)

This 'belief' is itself incredible. The testimony of defendant, Everett Reiser, alone, extends from printed page 260 to page 390, practically 130 pages of unabstracted testimony. The part reduced to narrative form occupies only one page and merely establishes details almost entirely unessential to the appeal. The testimony of the other defendant covers 59 pages, 58 of them in question and answer form.

These examples fairly illustrate most of the testimony as it appears in the Record. Such 'abstracting' contributes neither to the 'full' nor to the 'proper' presentation of appellants' case.

The trial court reluctantly settled the Record as filed (with some minor amendment) apparently as a practical choice of two evils, the other being that otherwise the case might not reach us for the fall term. In this we think he was wrong. However, we have decided not to sustain the motion to dismiss appeal but to lean heavily on the judgment of the trial court. This we are justified in doing when we are asked to pass de novo on a Record that contains approximately 400 printed pages copied practically verbatim from the reporter's transcript. The trial court at least had the advantage of hearing the testimony and seeing the witnesses. We may say further that were our decision in favor of defendants we would not hesitate to tax them with the cost of printing the 491 page Record.

II. Defendants assign various 'propositions relied on for reversal.' They complain first that plaintiffs were permitted to amend the petition and thereafter to prove plaintiffs' status as heirs of decedent, after plaintiffs had rested and a motion to dismiss had raised the question of their right to maintain the suit.

The decision was clearly within, and not an abuse of, the trial court's discretion and was in the interests of substantial justice. There was no error. Fair v. County of Ida, 204 Iowa 1046, 216 N.W. 952; Shultz v. Shultz, 224 Iowa 205, 210, 275 N.W. 562; Sullivan v. Sullivan, Iowa, 56 N.W.2d 910, 913.

III. Defendants next say the trial court erred in holding the escrow agent was under a duty to inquire before delivery of the deed as to the performance by defendants under the escrow agreement. We think the court correctly said such failure did not seriously prejudice either party since delivery and record of the deed did not affect the power of the court to cancel it upon a proper showing.

IV. It is contended the court erred in holding defendants incompetent, by reason of the 'dead man's statute', section 622.4, Iowa Code 1950, I.C.A., to testify as to their personal transactions with Mrs. Reiser. Defendants claim they were rendered competent because plaintiffs Knapp and Thorne had been examined and had testified as to certain communications between themselves and decedent, citing Code section 622.5.

Code section 622.4, so far as concerns the present case, provides: 'No party to any action * * * shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased * * *, against the * * * heir at law, * * * (or) assignee * * * of such deceased person *...