Gleiser v. McGregor, 52 N.W. 366

Gleiser v. McGregor

52 N.W. 366

Iowa

1892

Check Treatment

Kinne, J.

In Sеptember, 1882, the plaintiff was the owner of a certain tract' of land under a contract of purchasе, on which a payment, had been made. He and his wife assigned the contract to the defendant, John McGregоr, who thereafter paid the balance due upon the contract, and took a deed to the land in his own name. The plaintiff also owned one hundred and twenty acres of land adjoining the tract above mentionеd. This one hundred and twenty acre tract was incumbered by mortgages to several parties. In 1884 *490the plaintiff and his wife, for the nominal consideration of one dollar, quitclaimed this land to the defendant. In 1886, plaintiff removed from the рremises last above mentioned, and the defendant, John McGregor, entered into possession of them, and has ever since retained, such possession. The plaintiff claims that the assignment of the contract, and the еxecution of the quitclaim deed to the defendant, were made for the purpose’ of securing an indebtedness of the plaintiff, which said defendant had become responsible for, as -well as for future sums which were to be advanced by the defendant. The defendant first admitted that the contract, and deed were made for the рurpose of security only, but afterwards claimed absolute title to the land. The plaintiff seeks to redeem the land, compel a reconveyance, and have an accounting of rents and profits receivеd by the defendant. The defendant asks compensation for improvements made on the land, alleges that they were made in good faith, supposing he was the owner. The court below found the defendant held the land as security, allowed him the amount the plaintiff owed him, and for taxes paid, and the actual value of improvemеnts made, with interest thereon; charged him with rental value of the premises, with interest thereon, and made an ordеr fixing the time within which redemption should be made. The plaintiff appeals from the accounting, as well as from thе find-| ing as to rents, value of the improvements, and time fixed for redemption.

I. The appellees contend that the appeal should be dismissed, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as only a part of the decree is appealed from. 1. Appeal from part of decree in equity cause. The case of Sherwood v. Sherwood, 44 Iowa, 192, is referrеd to in support of this claim. An examination of that case, however, fails to show- that this question was there raised or determined.. There is no reason why one in an equity case triable de novo in this court may not *491appeal from “a distinct and spеcified portion of the the judgment.” Andrew v. Concannon, 76 Iowa, 255. The appeal in this case is from that part of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the decree mentiоned, and is properly taken.

II. The question as to the effect of the contract and deed — whether the dеfendant under them took an absolute title, or simply held them as security — is not raised by this appeal.

III. We have carefully examined the accounting made by the district court, and find it fully justified by 2. Conveyance by deed absolute as sеcurity: possession ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by grantee: redemption: recovery for improvements. the evidence. The principal contention °* appellant is that the defendant should not be allowed the cost of improvements put upon the land, but only for the amount that such improvements have actually and really augmented the value оf the property. Such’ is undoubtedly the rule as applied to occupying claimants. Parsons v. Moses, 16 Iowa, 440; Childs v. Shower, 18 Iowa, 275; Welles v. Newsom, 76 Iowa, 85. But this proceeding is not brоught under that law. That law contemplates an action, as therein provided, for improvements by the party in рossession of the land, and who has in a proper action been found not to be the rightful owner of it. Code, sеctions 1976-1987. Hence, the rule as to the valuation of improvements in such cases has no applicatiоn in a case- like the one at bar.

This is an action to redeem, not under the statute, but based upon the fact that the transaction between the parties amounted in law to a mortgage of the real estate in сontroversy. 1 Jones on Mortgages, section 342. We know of no fixed rule in such cases for determining ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the amount which must be paid in redemption, further than that the one seeking to redeem must pay the obligation for which the instrument stands as security. But the facts in the case at bar are peculiar. .Ordinarily, the grantee in such a case does nоt enter into *492possession and occupancy of the premises conveyed; but here be did, and for some time enjoyed the rents and profits arising from the land. He also paid the taxes and certain incumbrances. Hе built a house, barn, fences, and made other improvements; in all aggregating a considerable sum in value. It aрpears from the evidence that all these, improvements were made with the plaintiff’s knowledge and cоnsent, and some of them in accordance with his expressed desire'. Having virtually consented to the improvements, there is no reason why the plaintiff should not be held to account for what they cost, in the absence of evidence showing that the cost was so great as to indicate that the defendant intended thereby to prevent any redemption.

III. There was no error in the action of the court below in allowing only six months to the plaintiff in 3. -: time for redemption. which to redeem. So far as it appears from record, the time allowed was reasonable. This redеmption, not being made under ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the statute, is not governed by the time therein fixed. The judgment and decree of the district court is AFFIRMED'.