Waterman v. Wood
| Decision Date | 21 March 1919 |
| Docket Number | 32600 |
| Citation | 171 N.W. 171,185 Iowa 897 |
| Parties | G. A. WATERMAN, Appellee. v. FRED E. WOOD, Appellant |
| Court | Iowa Supreme Court |
Appeal from Plymouth District Court.--WILLIAM HUTCHINSON, Judge.
ACTION to recover possession of a house and lot in the city of Le Mars. There was a trial to the court, a judgment for the plaintiff as prayed, and defendant appeals.
Affirmed.
T. M Zink, for appellant.
Nelson Miller, for appellee.
To a considerable extent, the facts are not in dispute. George E. Richardson was a real estate agent in Le Mars, and had in his employment one A. L. Bowers. The plaintiff, Waterman, owned a house and lot in Le Mars, but, at the inception of the deal now in controversy, he was living in another state. The defendant, Wood, was a resident of Le Mars, and desired to purchase plaintiff's property, above mentioned. There was some talk or negotiation between the defendant and Bowers about the purchase of the property; but whether Bowers and his employer, Richardson, or either of them, was, at that time, the authorized agent of the plaintiff is a matter on which witnesses are not entirely agreed. Bowers testifies that he was first approached by defendant, who wished to know if he (Bowers) could get the property for him, and said he would pay $ 1,500 for it, but would not pay any commission. Being then asked if he would object to Richardson and Bowers' getting a commission from Waterman, he answered in the negative. Thereupon, Richardson took up the matter with plaintiff by letter, and sought to arrange with him for a sale to Wood upon the terms of his offer. Plaintiff finally agreed to allow the sale to be made, but at first refused to pay a commission. Later, he consented to pay a commission of $ 50. On receipt of defendant's letter to the foregoing effect, Bowers received from the defendant a first payment of $ 100, and delivered to him a receipt as follows:
On notice of this arrangement, plaintiff and wife made out a warranty deed of the property to defendant, dated March 6, 1916, and forwarded it to a bank at Le Mars, to be delivered on payment of the stipulated price. This deed excepted from its warranty any "liens which are or might be assessed against this property for paving or sewer." It further appears that, about the time the agreement was made between defendant and Bowers, the city council had begun proceedings for the pavement of the street in front of this property; but apparently, neither plaintiff nor defendant then knew or understood that the property had become subject to a lien for the special assessment to be levied for that purpose, though Bowers testified (and defendant denies) that the subject was mentioned, and it was orally agreed that the defendant should assume its payment. When the defendant went to the bank to make payment for the property, and found that the abstract of title tendered with the deed showed a lien for such special assessment, he demanded its removal or payment, as a condition precedent to his acceptance of the deed. He then deposited the full amount with the bank, with the receipt which had been given him by Bowers, instructing the bank to pay it over when the conditions named in the receipt were complied with. The dispute thus arising was continued by correspondence and by some ineffectual attempts at a compromise, covering a period of several months, until, at some stage of the controversy, before this suit was begun, plaintiff withdrew his deed from the bank, and refused to proceed further with the deal. The money deposited by the defendant still remains in the bank.
We now turn to facts more immediately connected with the possession of the property. When these negotiations were begun, the house and lot were occupied by a tenant of the plaintiff's, one Jones. On March 1, 1916, after the initial payment of $ 100 by the defendant, but before plaintiff had deposited the deed in the bank, defendant, who was then occupying other leased premises, arranged with Jones to permit him to go into possession of the Waterman house and lot, and for Jones to occupy the place which defendant vacated. By what authority defendant thus assumed possession of the property before he acquired title thereto, the record is quite obscure. As a witness, defendant says:
On the other hand, Bowers says:
There is no evidence whatever that either Bowers or Richardson had been given any power or authority to transfer the possession to defendant before the transfer of title. On the contrary, the correspondence which followed between plaintiff and Richardson shows that plaintiff declared that defendant had entered into occupancy of the premises without authority or right, and insisted that Richardson proceed to dispossess him, if he failed to pay the purchase price and take the deed tendered to him. On March 8, 1917, plaintiff served defendant with a 30-day notice to vacate the premises, and on April 10, 1917, defendant being still in possession, plaintiff served him with a further written notice to quit the same within three days. Defendant having refused to comply with said notice, plaintiff brought action against him in forcible entry and detainer before a justice of the peace, by filing a petition with the justice, setting forth his claim of title and defendant's alleged wrongful possession, and demanding his ouster therefrom. The defendant answered, alleging that he himself was "the absolute owner in fee simple" of the described property, and stating his version of the facts. Plaintiff then replied, denying the answer; and the justice of the peace, finding that an issue of title had been raised, certified the case to the district court for trial.
The foregoing statement embodies all the facts and testimony which are material to a determination of the appeal.
I. With these facts in mind, little discussion is needed upon the law governing the rights of the parties, so far as they are involved in the issues presented. The question to be decided is the right to the possession of the house and lot. The question of title is important only so far as it bears upon the right of possession. While defendant pleads in his answer that he is the absolute owner of the fee of the property in dispute, it is conclusively shown that plaintiff still holds the legal title; and, if defendant is entitled to the possession, it must be because the possession he defends was acquired with plaintiff's consent, or by some contract therefor with him. In the absence of other showing, the right to the possession of land is in the holder of the legal title, and the burden of showing a superior right thereto is upon the party who asserts it. A mere contract or agreement written or oral, to sell and convey at a future date, confers no right of possession upon the purchaser until the conveyance is complete; that is, until the purchaser has acquired title in himself. It is, of course, competent for the parties to agree upon a delivery of possession before consummation of the deal by delivery of deed. Defendant in this case bottoms his claim to be a purchaser upon the written contract or receipt signed by Bowers in the name of Richardson. He insists that this paper embodies all the conditions of his purchase,...
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