Williams v. Monzingo
| Decision Date | 12 December 1944 |
| Docket Number | 46613. |
| Citation | 16 N.W.2d 619,235 Iowa 434 |
| Parties | WILLIAMS v. MONZINGO et al. |
| Court | Iowa Supreme Court |
Frank Porter, of Ogden, and T. J. Mahoney, of Boone, for appellant.
Doran Doran & Doran, of Boone, for appellee.
Plaintiff the only living child of Mae Monzingo, brought an action to partition an 80 acre farm in Boone County, Iowa. The title to this land was held in the name of Mae Monzingo, now deceased and Fred E. Monzingo, her husband. The plaintiff contends that his mother held an undivided one-half interest in the 80 acres as a tenant in common. The defendant, Fred E. Monzingo asserts that the interest of his deceased wife and him in this property should be on the basis of the proportionate amount of the contribution made by the tenants in common. The trial court held that Mae Monzingo, mother of the plaintiff, owned, at the time of her death, an undivided one- half interest in the property but that this interest should be subject to a charge of $1000 by reason of improvements paid for and made by the defendant, Fred E. Monzingo, on the property involved in this action. The plaintiff, Otto N. Williams, and the defendant, Fred E. Monzingo, both appealed. Plaintiff appealed from the court's allowance of the sum of $1000 for improvements paid for and made by Fred E. Monzingo and the defendant, Fred E. Monzingo, appealed from the holding of the trial court that Mae Monzingo, held a one-half interest in the property purchased and held in the two names.
In the appeal of this case, Otto N. Williams is designated as appellee and Fred E. Monzingo is referred to as the appellant. We shall so allude to them in our later comments. The defendant, Raymond Burkhart, a tenant on the farm in question, is in no way concerned with this appeal. His interest in the property, as tenant, was terminated prior to the hearing before the trial court.
The appellee, Otto N. Williams, as previously stated, is the son of Mae Monzingo, now deceased, by a previous marriage. Fred E. Monzingo married Mae Williams on September 1, 1938. These parties had both previously been married. Fred E. Monzingo was 65 years of age at the time of this last marriage and Mae Monzingo was then about 60 years of age. The former wife of Fred E. Monzingo had died during the year 1931 and the husband of Mae Williams had died a number of years before. Fred E. Monzingo had four children by his first wife, three daughters and one son. One of the daughters is now deceased, leaving her husband and children surviving her. The other three children still survive. There were three children born to Mae Monzingo, formerly Williams by her previous marriage. The appellee, Otto N. Williams, is now her only surviving child.
At the time of the marriage of Mae Williams to Fred E. Monzingo she owned a small residence property in Ogden, Iowa. The appellant, Fred E. Monzingo, then owned a farm in Page County, Iowa, that he had purchased for approximately $17,500 in 1913. He later sold this property for $8,000. The record further shows that Mrs. Monzingo had received approximately $800 from an estate and that this money was used in making improvements in and upon the Ogden residence property.
On November 20, 1941, the appellant, Fred E. Monizingo, and his wife, Mae Monzingo, entered into a contract with Sidney L. Stumbo and Mae Stumbo, his wife, for the purchase of the land involved in this action. The consideration, as set out in the contract, was $10,000, of which amount $500 was paid on the execution of the contract and the balance of $9,500 was to be made with the payment of $7,500 in cash on March 1, 1942 and the conveyance of the Ogden property owned by Mae Monzingo at a valuation of $2,000. On this same day there was prepared and signed a warranty deed of conveyance for a consideration of $10,000 from Sidney L. Stumbo and Mae Stumbo, his wife, wherein the grantors therein did 'sell and convey unto Fred E. Monzingo and Mae Monzingo, his wife, of Boone County, State of Iowa' the property involved in this litigation. The record discloses that Mae Monzingo conveyed the Ogden residence property as contemplated by the contract at a valuation of $2,000 and it is further shown that checks were made payable to Sidney L. Stumbo, drawn on the account of Fred E. Monzingo in the respective amounts of $500 and $7,500.
In connection with the testimony of Fred E. Monzingo he was asked whether he had any intention of giving his wife, Mae Monzingo, any interest in the land purchased other than the interest that her contribution to the purchase price would give her. This question was objected to upon the grounds that the witness was incompetent under the statutory prohibition known as the 'Dead Man's' statute, section 11257, 1939 Code of Iowa, and also upon the ground that the question contemplated an intent to contradict, vary, or change the terms of a written instrument by parol evidence. The appellant in answer to the question last referred to state: 'No provision only what she invested.' He also testified as to his intentions, over objections, as follows: '* * * no intention of changing it only to think it stood according to the amount invested.'
Sidney L. Stumbo stated that at the time of the making of the contract and the giving of the deed he had a conversation with Mr. and Mrs. Monzingo how the deed to the farm should be made out. His testimony in regard to this conversation was as follows: '* * * and at that time Mrs. Monzingo said she would like to have a deed for the twenty acres that has the house on it on the south side of the road, made out to her in her name.' Fred Fisher, a son-in-law of Fred E. Monzingo, testified, over objections as to his competency, that on one occasion he heard Mrs. Mae Monzingo say, '* * * she had asked father to deed her the south twenty, but he didn't seem to be willing to do it.' Frank Porter, attorney of Ogden, Iowa, also testified, over objections as to his competency, as follows:
The respective contentions of the appellee and appellant may be summarized as follows:
It is the contention of the appellee, Williams, that as the only child and heir of Mae Monzingo he is entitled to a two-thirds interest of the one-half interest of Mae Monzingo in the property involved in this litigation and that by reason of this contention he is entitled to a two-sixths or a one-third interest in the proceeds of the entire property. It is the claim of the appellant, Monzingo, that Williams is entitled to two-thirds of a one-fifth interest or a two-fifteenths interest in the proceeds derived from the sale of the entire property and that he, Monzingo, is entitled to one-third of the one-fifth interest and that this one-fifteenth interest plus his own four-fifths or twelve-fifteenths interest would equal a thirteen-fifteenths interest of the entire proceeds derived from the sale of the land. The contention of the appellant, Monzingo, is based upon the contributions of $2000 and $8000 made respectively by Mae Monzingo and Fred E. Monzingo in the purchase of the farm property.
The appellant maintains (1) that the trial court was in error, in holding in the face of the conclusive showing that the appellant paid four-fifths of the consideration for the land and his wife one-fifth thereof, that the burden still remained upon him to negative a gift to her of the difference between one-fifth and one-half of the consideration by clear, convincing and practically overwhelming evidence, and (2) that even if the court was correct in placing the burden of proof upon the appellant to show by clear, convincing and practically overwhelming evidence that no gift was made to the wife, appellant sustained this burden. There is the further question presented in this appeal by reason of the claim by the appellee that there was insufficient evidence to sustain the trial court's holding in allowing for improvements alleged to have been made upon the premises following the time appellant and his wife became the owners thereof.
I. In our consideration of the main question presented on this appeal, that is, what the respective interests of Mae Monzingo and Fred E. Monzingo were at the time they received the deed in question, we must be guided by certain rules heretofore announced by this court in cases of this character. These rules are commented upon in the case of Lowell v. Lowell, 185 Iowa 508, 511, 170 N.W. 811, 812, from which we quote, as follows:
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