Wemer v. Long, 54332

• Court: United States State Supreme Court of Iowa
• Citation: 185 N.W.2d 243
• Docket Number: No. 54332,54332
• Parties: Norman G. WEMER and Betty L. Wemer, Appellants, v. Carl S. LONG and Bernice G. Long, First National Bank, Ottumwa, Iowa, Holiday Credit Corporation, Appellees.
• Decision Date: 11 March 1971

Page 243

185 N.W.2d 243 Norman G. WEMER and Betty L. Wemer, Appellants,
v.
Carl S. LONG and Bernice G. Long, First National Bank, Ottumwa, Iowa, Holiday Credit Corporation, Appellees. No. 54332. Supreme Court of Iowa. March 11, 1971.

Page 244

Life, Davis & Life, Oskaloosa, for appellants.

Bailey Webber, Ottumwa, for appellees.

REES, Justice.

This is an action for declaratory judgment brought by the plaintiffs in which they ask judgment against the defendants adjudging their right, title and interest a equitable owners of an 80-acre tract of real estate in Wapello County be established and confirmed, or alternatively, that they have judgment declaring the real estate contract involved to be void in its inception by reason of fraud on the part of the contract vendors. The trial court dismissed the petition of plaintiffs, and we affirm the trial court.

On or about July 31, 159, plaintiffs Norman G. Wemer and Betty L. Wemer entered into a contract with the defendants Carl S. Long and Bernice G. Long for the purchase of an 80-acre farm tract in Wapello County, described as the North Half of the Northeast Quarter of Section 12, Township 71, Range 13, for the sum of $12,000. Payment was to be in part by the transfer to the defendants Long of certain property on Rochester Road in the city of Ottumwa then owned by the Wemers which was subject to a mortgage thereon which the Longs were to assume. It was understood the value of Wemer's equity in the Ottumwa property was $6,833.57, and the balance of $5,166.43 was to be paid in annual payments of $400 or more commencing November 30, 1959, such payments to include interest at the rate of six percent per annum from and after July 1, 1959.

The contract further provided the plaintiffs were to pay all taxes and assessments as they became due or before they became delinquent after the 1958 taxes due in 1959 had accrued and had been paid. The contract further provided that time was of the essence and that upon default in payment of any installment the contract should be void and of no force or effect, and that upon forfeiture thereof all rights of the plaintiffs therein should cease and terminate.

The plaintiffs went into possession of the real estate upon the execution of the contract, and made payments of the $400 annual installment in 1959, 1960 and 1961.

At the time of the execution of the contract record title to the 80-acre farm rested in one B. H. Burns, who apparently took title in 1943, and had contracted to sell the premises on October 10, 1946 to E. E. Brandon and Mildred Brandon; the Brandons had in turn, on April 24, 1959 assigned their contract and entered into a separate contract with Robert E. & Francis

Page 245

L. O'Neil. On July 30, 1959 the O'Neils assigned their contract and entered into a written assignment which provided by its terms that it was to be construed as a quit claim deed with the defendants Bernice G. and Carl S. Long, who on the following day, July 31, 1959, entered into a contract with the Wemers with which contract we are here concerned. E. E. Brandon and Mildred Brandon, husband and wife, acquired record title to the premises by warranty deed executed by B. H. Burns on February 10, 1966.

In May, 1962 Brandon prepared a notice of forfeiture of his contract dated April, 24, 1959 and directed the same to Robert E. and Francis L. O'Neil, Carl Long and Mrs. Carl Long, and Norman G. Wemer and Betty Wemer. The notice of forfeiture was based upon the non-payment of the 1960 taxes assessed against the real estate, payable in 1961, and default in the payment of the first half of the 1961 real estate taxes, due in 1962, all of which were delinquent at the time of the service of the notice of forfeiture, which was served upon the Wemers on May 3 and May 5 of 1962 but was not served upon the defendants Long until June 19, 1962. The defendants Long, in order to avoid the forfeiture of the Brandon contract, delivered their check in the amount of $116.87 to Brandon on July 18, 1962, which check was endorsed to the county treasurer of Wapello county by Brandon to effect payment of the delinquent taxes for 1960 and the first half of 1961.

Following payment of the taxes by Long to Brandon, Long caused to be served upon the plaintiffs Wemer a notice of forfeiture of his contract based upon Wemer's default in making payment before they became delinquent of the 1960 taxes and the taxes for the first half of 1961. Upon the trial of the case, plaintiff Norman Wemer testified he was not served with a notice of forfeiture. However, the trial court found that a return of service which was introduced as an exhibit evidenced a valid service of the notice personally upon Norman G. Wemer on July 24, 1962 and on Betty L. Wemer on July 28, 1962. The Wemers do not claim they made payment of the amount of delinquent taxes to the defendants Long during the 30-day period following service of notice of forfeiture, nor that they did anything else to avoid the forfeiture of the contract. During the 30-day period following the service of the notice of forfeiture, and on August 21, 1962, the defendants Long mailed to the plaintiffs a letter warning them that their failure to remit the sums advanced by Longs for the payment of taxes and for the nonpayment of which the forfeiture was based would result in plaintiffs losing the farm. A copy of the letter so addressed by defendants Long to the plaintiffs was introduced as an exhibit. However, the plaintiff Norman Wemer...