53 Iowa 599 | Iowa | 1880
The defendants rely solely upon the following clause of the procedendo: “Therefore, you are hereby commanded that * * * you proceed in the same manner as if no judgment had been rendered or appeal had been taken and prosecuted in this court, anything in the record .or proceedings aforesaid certified to the contrary notwithstanding.” The defendants ignore utterly the following statement contained in the procedendo: “And the said court, having duly examined the record and proceedings aforesaid in the premises, * * * did réverse the judgment and decree aforesaid, as rendered in the court below, and order further proceedings to be had in said court not inconsistent with the opinion of the Supreme Court, and in accord with their opinion filed.”
II. The intervenors, P. P. Mast & Co., insist that. whatever may be held as between the plaintiffs and the defendants, still, as between the plaintiffs and the intervenors, as there was no proof of a judgment against L. M. Morton; the lien of the intervenors must be preferred. To this it may be said:
First, That the petition of intervention raises no issue as to the existence of a judgment in favor of plaintiffs against L. M. Morton. The petition of intervention impliedly concedes the existence of a claim in favor of plaintiffs • against L. M. Morton. The sole ground upon which intervenors ask relief is that the property which plaintiffs are seeking to subject to their claim is the property of Sallie M. Morton, and not of L. M. Morton. There is no suggestion nor intimation in the petition of intervention that plaintiffs did not have a claim under which they might subject the property of L. M. Morton;
•III. The defendants insist, however^ that • the evidence shows that the property in question was bought and improved entirely with money of the defendant Sallie M. Morton, and that the court erred in finding that the defendant L. M. Morton contributed $1,176 toward the acquisition thereof. The evidence shows that L. M. Morton owed his father-in-law about $1,500. The defendants claim that the father of Sallie M. Morton gave this claim to her, and that what the defendant L. M. Morton contributed to the improvement of the property was in good faith paid to Sallie M. Morton in satisfaction of this debt. We are fully satisfied that this position of the defendants is not sustained by the evidence. If any gift of this debt was made it was not until after the house upon the premises in question was erected. The evidence shows clearly that after the erection of the house the father of .Sallie M. Morton endeavored to obtain payment of the debt- Further, if any gift was made there is as much reason for ..holding that it was made to L. M. Morton as that it was made to Sallie M. Morton.
IT. Counsel for the defendants have devoted considerable space in their argument to a criticism of the doctrine announced in the former opinion in this case, 49 Iowa, 16. It might be sufficient to say that the doctrines of that opinion are not npw properly presented for review. But counsel seem to rely so confidently upon their position that we deem it not improper to devote a little space to this portion of their argument. Counsel insist that the opinion in this case is irreconcilably and hopelessly in conflect with Corning v. Fowler,
The distinction between the two cases is obvious and important. In Corning v. Fowler, the land upon which improvements were made, .partly with the means of the husband, was purchased solely with the means of the wife. In this case the wife contributed to the whole property but two hundred dollars. The original purchase price of the- land was nine hundred dollars, and of this the wife paid two-ninths. It is claimed by the defendants that because of this payment she
Y. The plaintiffs appeal from the holding of the court that the defendant L. M. Morton contributed only $1,17 6 to the acqusition of the property. We think it is very clear from all the evidence that Sallie M. Morton never directly contributed anything toward the purchase or improvement of the property, except the two hundred dollars paid for her by her son. The lots were purchased from W. H. Lewis. A payment of $200 was made at the time of the purchase, and a mortgage was given to secure the -deferred payments. The evidence shows that this balance was paid in lumber by L. M. Morton, and the mortgage was canceled February 7, 1871. It is conceded by Sallie M. Morton that L. M. Morton furnished the means for the building of the house, but she claims that he did so in payment of a debt which he owed her father and which had been given to her. This claim, as we have seen, is not supported by the evidence. The evidence shows that the value of the two lots, with improvements thereon, is $2,400. The evidence also shows that-the improvements cost about $1,500. Two of the lots were sold for $900, and it may be concluded from the evidence, we think, that the proceeds were used, either directly or indirectly, in the construction of the improvements. The balance must have been contributed by L. M. Morton. L. M. Morton contributed, therefore to the original purchase of the lots, $700, and to the erection of the improvements, $600. Sallie M. Morton’s
On defendants’ and intervenors’ appeal, the judgment is affirmed. On the plaintiff’s appeal, the judgment is
Modified and Affirmed.