171 Iowa 437 | Iowa | 1915
— Plaintiff, having first perfected his appeal, is the appellant. The appellant and appellees have each filed an abstract setting out the evidence and proceedings on each appeal. Though largely questions of fact are presented as to the merits, we shall not attempt to set out the evidence at any length. It would be impracticable to do so. Twenty-eight pages of the abstracts are taken up with printing the pleadings and the several amendments thereto.
1. We shall first refer to the point made by plaintiff and the- alleged error in overruling, his motion to separate and try some of the issues at law. It will be necessary to refer more in detail'to the pleadings,and the state of the record at the time of the ruling by Judge Albrook to try the equitable issues as in equity, and the ruling of Judge Wright, at the conclusion of the evidence of defendants, on plaintiff’s motion to separate and try some of the issues at law.
The cause then proceeded to trial on October 7th and 8th, 1912, before Judge Albrook, and a jury was impaneled; after the testimony of plaintiff had been offered, defendants filed an amendment to their answer, setting up the equitable matter before referred to. This amendment recited that it was made at the close of plaintiff’s evidence, and upon the introduction -of the warranty deed; alleged that the deed did not state the true contract and agreement; that in truth the Seibers made no covenants of warranty as expressed in the deed; that the Seibers did not convey all the land named in the deed to the plaintiff, but that at the time the conveyance was made, there was pending an action in partition entitled Huffman v. Huffman et al., in which a decree had been entered ordering the partition of the land named in the deed, and' other lands, by the sale of the same; that one Crooks was appointed sole referee to sell; that before said deed was made, Crooks, as referee, agreed to sell to plaintiff the land described in the deed, and agreed to sell to defendants, the Seibers, the balance of the real estate so partitioned; that the referee desired to report only one sale and not make two referee’s deeds, and that he induced the Seibers to take a referee’s deed to all of said premises, but to become in fact, the owner of only a part of it, and that plaintiff receive a deed'from the Seibers for the portion he had purchased from the referee, which was done; that defendants, the Seibers, received no
Plaintiff moved to strike the amendment because filed too late, and because irrelevant to the issues as made. This motion to strike was overruled. The defendants’ motion to transfer the equitable issues presented by such amendment was then sustained, and the transfer was made for such purpose, as recited in the order set out in the abstract. To this order, the plaintiff excepted.
On November 25, 1912, and nearly two months after the ruling transferring the equitable issues, plaintiff filed a reply to this amendment, denying that defendants were entitled to a reformation or modification of the deed. On November 27, 1912, the hearing was taken up before Judge Wright.
It will be observed that there was no occasion for the defendants to plead a reformation of the deed until plaintiff had set up the deed in his reply, and had amended his petition in that respect; this deed was so set up during the trial before Judge Albrook.
The defendants’ amendment to answer did set up equitable issues, and, so far as such issues were concerned, it was proper for the trial court to transfer such issues to the equity side, and this is all that was done. The order does not purport to transfer the entire case, as we understand it. The plaintiff’s exception was only to the order transferring the equitable issues, and, as stated, the order was proper at that time and to that extent, so that the exception thereto would not be well taken. After defendants had put in their evidence on the equitable issue, but before plaintiff had introduced his evidence in rebuttal on that point, plaintiff made his motion to separate the issues, which has been heretofore referred
It seems to the writer that, under the peculiar situation shown by the record in this case, there was no error in overruling plaintiff’s motion; that the motion was premature, and that plaintiff waived any objection he might have had to the entire case being tried to the court by not objecting and without renewing his motion'when the evidence was all in, and when the issues raised by the defendant in its equitable answer could be determined. As bearing somewhat upon this proposition, see Kamrar v. Butler, 164 Iowa 293.
Appellant at this point cites and relies on Code Sec. 3434 and the case of Fisher v. Trumbauer, 160 Iowa 255. The statute referred to" provides, in substance, that where plaintiff has adopted the wrong proceedings; the defendant may have the correction made by motion at or before filing ■answer. In the Fisher case, plaintiff brought his suit in equity. The equities were not proven, and the trial court dismissed the cause and relegated the parties to an action at law. This was held to be error because Sec. 3432 of the Code provides that an error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings and a transfer to the proper docket. In the present case, the trial court did not dismiss the action, but did proceed to determine the entire matter.
In certain cases, the proof rather than the allegations in the pleadings control, as stated in Fisher v. Trumbauer, supra.. Even though this be true, when the proof is all in,
We agree with the trial court that the weight of the evidence . shows that, as between plaintiff and defendants, the barn was personal property. The evidence is without substantial dispute, we think, that the barn, when built, was personal property as between Huffman, who built the barn, and his mother, the owner of the land; and it is undisputed that the Seibers, plaintiff’s grantors, had full knowledge of that fact. If plaintiff is bound by such knowledge, then, even though the case had been tried at law, or to a jury, the court would have been compelled to direct a Verdict. In such a case, there would be no prejudice in failing to separate the law issue and try that on the law side of the calendar. Slaughter v. McManigal, 138 Iowa 643, at 650.
There may be some conflict in the evidence as to whether plaintiff himself had notice of the character of the barn as to its being personal property. Whether such notice is required, we do not determine. The only debatable proposition in regard to plaintiff’s motion to separate the issues is whether there was such a conflict in the evidence as to entitle plaintiff to a trial at law, or to a jury, had a jury been demanded.
“My reason for writing after the warranty clause in this deed the words ‘claimed by, through or under us’ was that some persons think that a quit claim deed is not a deed sufficient to carry title and this would be called a special warranty. The object in that, the matter being understood between all the parties, and the purchase being made in the way it was, was that all that would be given would be a special warranty deed.
“Q. Was it your intention at that time in drawing up that deed, or from what Day had said to' you and the Seibers brothers had said, that the Seibers brothers were to warrant the title to Mr. Day to this land?”
Over objection, he answered:
“No, it was not my intention, only to the extent of it carrying title to Mr. Day under the agreement to buy land according to their agreement.
“Q. Was it your intention in drawing that deed that Seibers brothers were to give Day any more title, or any*448 greater title, or any different title, than wnat they got by the Referee’s deed from you?
“A. Nothing else than that, no.
“Q. Then, Mr. Crooks, this deed from Seibers brothers ■to Mr. Day was simply a form or formality that was gone through for the purpose of saving you making two reports of sale and two Referee’s deeds?
“A. Yes, that is correct. As far as I knew from my knowledge of this transaction, the Seibers brothers did not receive any consideration whatever for this deed to Mr. Day. Not a cent, nor any property. It was during the negotiations that Mr. Day spoke to me about the barn, and I then called Mr. Day's attention to the fact that that bam was on there that belonged to Mr. Dyer. Mr. Day was in the office. I told him that Mr. Dyer had been in and spoke about the barn, and I told him I knew he was to have the bam for it did not belong, as I understood it, to the Huffman Estate, but it went out of my mind before that to say anything about it, and he wanted to know what about the matter of reserving it, and I said, ‘The commission to me directs me to sell certain lands,’ (describing them); that I didn’t know that I would have any authority (as referee) to reserve anything in the matter of the barn, but as I understood it, it belongs to the person who owned the five acre tract. But it went out of my mind entirely, and we talked the matter over some, and he wanted to know if he bought it, what about the outcome of it, and I told him I didn’t think it was a fixture. He wanted to know about it, and I told him, as I understand the law, that the barn was put there to be taken away, the party who placed it there had a right to remove it, and it wouldn’t go with the sale unless they had been served with notice to remove it and failed to do so according to the notice, but he had better see Mr. Pry, who had procured the order for the sale of the land and see what he said about it. Subsequently he talked to Mr. Fry about it. This conversation was quite a while before I drew up this deed to plaintiff.*449 The matter hung along. As I have already said, we had as many as three conversations, and in each I explained to him, as I understood the matter, that I told him I was not selling the barn; I was selling the land described in the commission. ITe came back to me and said Mr. Fry had told him substantially the same as I had. I think the Seibers were close by when I had a talk with Mr. Day in reference to the barn. At the time I drew this deed from Seibers to plaintiff it had passed out of my mind in reference to the barn. If I had remembered about the barn at the time I had drawn this deed I would have put in there the reservation in reference to the barn.”
Some of the evidence is objectionable, but it was not all objected to. There is enough competent evidence to show the true agreement between the parties.
One of the Seibers testifies, — and the other says he understood it the same way:
“We did not have any intention at the time I and my brother executed this deed to C. W. Day of the land conveyed in the deed that we would give him any title or right to the Dyer barn. At the time that we executed this deed to C. W. Day we did not claim to own any title or interest in this barn of Dyer’s.
“Q. If you had known, Mr. Seibers, that this deed that Mr. Crooks prepared and you and your brother signed conveyed any title, or was an assignment or transfer of the barn across the line that was claimed by Sol Dyer, would you have signed the deed?”
Over objection, he answered, “No, sir.”
There is other evidence of like import. Though plaintiff denies some of the statements of the witnesses for defendants, we do not understand him to claim that the parties intended or supposed that the barn went with the land which plaintiff was buying. He simply relies on his deed. In fact,
The trial court might well have placed his decision upon this ground, but the result is the same, and the judgment is —Affirmed.