Votruba v. Hanke

• Citation: 210 N.W. 753,202 Iowa 658
• Decision Date: 16 November 1926
• Docket Number: 37462
• Parties: M. VOTRUBA, Appellee, v. RAYMOND HANKE et al., Appellants
• Court: Iowa Supreme Court

210 N.W. 753

202 Iowa 658

M. VOTRUBA, Appellee, v. RAYMOND HANKE et al., Appellants

No. 37462

Supreme Court of Iowa, Des Moines

November 16, 1926

Appeal from Des Moines Municipal Court.--J. E. MERSHON, Judge.

This is an action of forcible entry and detainer, based upon a forfeiture of a contract of sale to the defendants. The defendants pleaded a general denial and several purported affirmative defenses. One of these was a counterclaim. A demurrer to the counterclaim was sustained. Likewise, a motion to strike the other affirmative defenses was sustained. The defendants stood upon their pleadings, and refused to plead further. Jury was waived, and trial had to the court, which rendered judgment for the plaintiff. The defendants appealed.

Affirmed.

R. L Parrish, for appellants.

Royal & Royal, for appellee.

EVANS J. DE GRAFF, C. J., and ALBERT and MORLING, JJ., concur.

OPINION

EVANS, J.

I.

One of the defenses pleaded was that the notice of forfeiture served upon the defendants was not sufficiently specific to comply with the requirements of the statute, Paragraph 2, Section 12390, Code of 1924. The specification contained in the notice of forfeiture was as follows:

"For the reason that you have failed to comply with the terms and conditions of said contract in that you have failed to pay the installments which are due upon said contract, have failed to pay the taxes for the year 1924 due and payable in 1925, and that you have failed to pay the interest and installments due upon the first mortgage upon said property as provided in said written contract."

Defendants concede that the specification relating to nonpayment of taxes was sufficiently specific. This of itself would have sustained the forfeiture. If the defendants had cured the default as to taxes by paying the same, they would have been in a position to contend that the other specifications were not sufficient. The most that the defendants can contend upon the record, is that they had suffered no other default than the failure to pay the taxes. This being so, they were still in default, and subject to forfeiture. If the notice served upon them was redundant in charging other defaults, they were not harmed thereby. We have no occasion to consider whether the other defaults should have been stated more specifically.

II. The defendants pleaded as one defense that, prior to the service of the notice of forfeiture, they had sold and assigned to Amelia P. Caldwell their interest in the property, by a contract partly in writing and partly oral. The written contract was as follows:

"We the undersigned, hereby assign all of our right, title and interest, in and to the within contract and in and to the property therein described, to Amelia P. Caldwell, as security for a promissory note, dated, November 22, 1923, for thirteen hundred dollars. Unpaid bal. due on this note on date of maturity to be renewed until note is paid until three years have elapsed from date of maturity when bal. is due and payable.

["Signed] Raymond Hanke,

"Ellen M. Hanke."

The oral agreement pleaded was that Amelia P. Caldwell should join with the defendants in the occupancy of the premises, and so continue until the defendants had repaid to her the sum of $ 1,300 loaned by her.

Defendants aver that no notice of forfeiture was served upon Caldwell as the successor in interest to the defendants, and that, therefore, the court had no jurisdiction to proceed until such notice of forfeiture be served. This defense was stricken on motion, and defendants complain. The argument is that the statute provides that the vendor...