White v. Massee
| Decision Date | 18 January 1927 |
| Docket Number | 37421 |
| Citation | 211 N.W. 839,202 Iowa 1304 |
| Parties | GEORGIANNA WHITE, Appellant, v. M. M. MASSEE et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Chickasaw District Court.--W. J. SPRINGER, Judge.
Suit to enjoin interference with plaintiff in carrying out her contract with defendant M. M. Massee, her father, to furnish him a home, and with her possession of land given her by him and to cancel deeds by M. M. Massee to Seymour Massee and Clifford Massee. Cross-petition to cancel agreement and to recover rents. Decree for defendants. Plaintiff appeals.
Reversed.
H. J Fitzgerald and W. H. Scott, for appellant.
Geiser & Donohue, for appellees.
MORLING J. EVANS, C. J., and DE GRAFF and ALBERT, JJ., concur.
I.
Plaintiff and defendant Seymour Massee are the children, and Clifford Massee the grandson, of defendant M. M. Massee. About July 18, 1920, plaintiff and her father orally agreed that plaintiff should furnish a home for, take care of, and treat her father properly, and that he should give her his 160-acre farm (he says 80 acres) when he was through with it. It was agreed that the plaintiff and her husband and the father should move upon the land, and that the place should be fixed up. Plaintiff was to pay the taxes and insurance. They did move upon the land. Plaintiff's husband made improvements and repairs. The father fixed over and improved the house. No trouble developed until July, 1923. About that time, the father demanded rent. Defendants' testimony is that the plaintiff promised, as a part of the agreement of 1920, to pay rent. Plaintiff and her husband testified that there was no agreement to pay rent. At least three other witnesses testified to statements by defendant M. M. Massee that he had given the farm to the plaintiff, and that all they had to do was to keep up the taxes and insurance (other than taking care of him, of course). Ten other witnesses testified to statements made by the father that he had given the farm to the plaintiff. The father testified that he then had other property and money amounting to about $ 2,200. The evidence shows very satisfactorily that the agreement was as claimed by plaintiff, and that there was no agreement that plaintiff should pay rent.
II. Defendants contend that plaintiff did not treat her father properly. The father testified, in substance, that the plaintiff furnished him nothing in the way of clothing; that they treated him "very fair before;" that plaintiff and her husband tried to tell him that he was insane; that the boy set him down in a chair, and told him to stay there; that plaintiff's husband choked him (he retracted this) and snubbed his nose; that plaintiff hit him over the eye. On cross-examination, he testified:
The foregoing is the trend of the father's testimony. He was 85 years old when testifying, in 1923. He was evidently fickle, vacillating, and irascible. There are serious contradictions in his testimony. He told a number of witnesses, about the time he went to live with plaintiff, that the defendant Seymour, with whom he had been living, had kicked him out. The testimony of the plaintiff and members of her family is that the father was treated kindly by them; that he made no complaints, and said he was well satisfied. The testimony of other witnesses tends to corroborate plaintiff's claim in this respect. Without further detailing the evidence pro and con, we are satisfied that, while the father was irritable, and frequently flew into a rage, and, it is not unlikely, provoked retort, that his claims to having been abused or ill treated are not sustained.
III. The father claims to have paid some taxes and insurance assessments. The evidence fails to show, however, that the plaintiff was not ready and willing to pay the taxes and insurance, or that she has broken her contract in this or any other respect.
IV. Prior to July, 1920, the father, who was a widower, had lived most of the time since his wife's death with the defendant Seymour Massee. About that time, he left Seymour, and gave as his reason, and the evidence abundantly shows, that Seymour and his wife refused to keep him any longer. Two of the neighbors testified that the father said that Seymour's wife had asked him to deed the farm in controversy to them, and he had refused to do so. After leaving plaintiff, the father went back to Seymour's place. This was about July 18, 1923. On October 10, 1923, the father deeded to Seymour 120 acres of the land in question, and to Seymour's son, the defendant Clifford, the other 40 acres. These deeds were recorded. The plaintiff testified that, when the agreement in question was made, the father told her that he would make a will by which she would be given the farm. A will was later drawn by Getsch, a banker, who had been looking after the father's business. The banker testified that Seymour Massee got this will in the summer of 1923. The will was not produced. The banker testified, over objection, that the will gave the real estate to plaintiff. The father testified:
The consideration named in the deeds is love and affection "and other considerations." Plaintiff was and still is in possession. Counsel, of course, admit that the grantees are not bona-fide purchasers. The circumstances, however, are important, as bearing on the question whether plaintiff should have an injunction.
Defendants' main contention is that plaintiff's agreement is one for continuing personal services, not specifically enforcible against her, and therefore not mutual, and also, until completely performed by plaintiff, not subject to specific performance; that the suit for injunction is, in effect, for negative specific performance, and therefore cannot be maintained. The plaintiff is not now entitled to specific performance, nor does she claim that she is, either positively or negatively. Her suit is for an injunction restraining the defendants from interfering with or preventing her from performing her contract. Though she is not, at this stage of the case, entitled to specific performance, either positively or negatively, she is entitled to maintain a suit on the principle of quia timet, to preserve her rights in the contract and property, and to protect her in performance, to the end that she may ultimately be in a position to claim and secure the benefits of the contract. Chantland v. Sherman, 148 Iowa 352, 125 N.W. 871, and cases cited; Newman v. French, 138 Iowa 482, 116 N.W. 468; Campbell v. Dunkelberger, 172 Iowa 385, 153 N.W. 56. After the death of M. M. Massee, the plaintiff, if she has performed her contract, and it is still in effect, may enforce it by fastening a trust upon the property. She may also maintain an action at law for breach. She may sue for services and for improvements made. 40 Cyc. 1070. The defendants, before the commencement of this action, gave the plaintiff and her husband notice to quit. The plaintiff may hold herself in continued readiness to perform her contract with her father, and upon his death may thereby, as against the other parties, become entitled to one of the remedies referred to. Yet, if the deeds to Seymour and Clifford are allowed to stand, and the grantees are not prevented from exercising their apparent rights as record owners of the legal title, the remedy chosen by plaintiff may become wholly unavailing. Plaintiff does not claim that she is entitled now to specific performance. It is said in her argument in reply:
We are of the opinion that the plaintiff had, up to the time of trial, fully performed her contract (or held herself in readiness to perform), and that the payment of taxes...
To continue reading
Request your trial