162 Iowa 186 | Iowa | 1913
As already indicated, the pleadings are very
Prior to the year 1909, S. Y, Eggert and Helen Pratt were the owners of the 864 acres of land in controversy, situated in Wright county, Iowa. These lands were valued at $48,000, and on September 9th, of that year, Rice, who had no right, title, or interest therein, but who knew of their selling price, entered into a contract with Hambleton and Howerton to sell them the property for a sum named, and as part payment of the purchase price Rice received from them the sum of two dollars. This contract reads as follows:
Article of Agreement. This article of agreement made and entered into on this 9th day of September, 1909, by and between F. M. Rice of Dows, Wright county, Iowa, party of the first part, and W. R. Howerton and J. T. Hambleton of Des Moines, Iowa, parties of the second part, witnesseth: That the party of the first part agrees to and does sell to the parties of the second part the following described real estate situated in Wright county, Iowa, to wit: The north half of section No. 14, township No. 90, range No. 24, except 96 acres as in accordance with the meander of the lake on the northwest corner of the above tract to be conveyed containing 224 acres more or less according to the survey. Also the south half of section No. 14, township No. 90, range No. 24, containing 320 acres, also the west half of section No. 23, township No. 90, range No. 24, containing 320 acres, making a total amount of acres in said tracts to be conveyed 864 according to the government survey thereof for the sum of $48,000.00, the same to be paid for in the following manner: $2.00 cash in hand on the execution of this contract, the receipt of which is hereby acknowledged and $2,998.00 in thirty days when abstracts are furnished showing that the title will be good and $7,000.00 on or before March 1st and at that time deed to be furnished and mortgage taken back on said land for $10,000.00 on the 224-acre tract and $28,000.00 on the 640-acre tract, making a total in mortgages of $38,-*190 000.00, the same to draw 5 per cent annual interest and to be payable on or before ten years, except $8,000.00 of the $24,000.00 shall be due in five years. The above payments as specified together with the mortgages is to be in full payment of said amount. Second party assumes four-tenths of ditch tax amounting to $1,216.24 with interest at 6 per cent from January, 1910, and first party is to furnish abstracts showing good and merchantable title free from all incumbrance. This contract to be binding upon the parties hereto, their heirs, executors, administrators and assigns and to be fulfilled at the Farmers’ Exchange Bank, Dows, Iowa. For the faithful performance of the above covenants and agreements witness our signatures: F. M. Bice. "W. B. Howerton. J. T. Hambleton.
On the back of the contract appears the following assignment:
For value received I hereby assign all my right and interest in and to the within contract to J. T. Hambleton without recourse on me. [Signed] W. B. Howerton.
Thereafter and on the 11th day of the same month, the following contract was entered into between Pratt and Bice:
This contract made this 11th day of September, 1909, by and between Helen Portia Pratt of Indianapolis, Indiana, and F. M. Bice of Dows, Iowa, witnesseth: That in consideration of the sum of $32,950.41 to be paid as hereinafter stated and other covenants herein contained, the said Helen Portia Pratt hereby agrees to sell and convey unto the said F. M. Bice and to his heirs or assigns the following described real estate, to wit: The south half of section No. fourteen (14) and the west half of section No. twenty-three (23), all in township No. 90, north, range No. 24, west of the 5th P. M. Deed to said land to be made as hereinafter provided to said F. M. Bice or W. B. Howerton and J. T. Hambleton, if desired by said Bice. Said land to be conveyed by said Helen Portia Pratt on March 1, 1910, by good and sufficient deed and free from all liens and incumbrances, except the drainage taxes assessed against said land which he, the said Bice*191 or Ms assigns is to assume and agrees to pay. Said Helen Portia Pratt also agrees to furnish abstract of title to said land showing good title thereto. In consideration whereof the said Rice agrees to pay $1,000.00 within thirty days from the date hereof, upon delivery to Mm of abstract showing good title, $3,950.41 on March 1, 1910, and on delivery of deed to execute his notes for the sum of $28,000.00, $8,000.00 to be payable on or before'five years from March 1,1910, and $20,000.00 on or before ten years from March 1, 1910, at five (5) per cent, per annum, payable annually, together with a first mortgage securing the same on all the above-described land. It is further understood that, if so desired, deed shall be made to said W. R. Howerton and J. T. Hambleton upon payment being made as herein provided and upon the execution by them of the notes and mortgages herein provided for. It is further understood and agreed that time is the essence of this contract and that, upon failure to pay any of the installments of purchase price as herein provided, the vendor may forfeit this contract by serving notice as provided by the law of the state of Iowa, and shall retain all payments made hereon. P. M. Rice. Helen Portia Pratt.
And upon the back of this contract is the following indorsement:
Dows, Iowa, October 14, 1909. For valuable consideration I hereby sell and assign to G-. H. Jameson all my right, title and interest in and to the within contract. [Signed] F. M. Rice.
On the 12th day of August, 1909, Eggert and Rice made a contract, which is as follows:
TMs agreement, made this 12th day of August, A. D. 1909, between S. Y. Eggert of the county of Hardin and state of Iowa, party of the first part, and F. M. Rice of the county of Wright and state of Iowa, of the second part, witnesseth: The party of the first part hereby agrees to sell to the party of the second part, on the performance of the agreements of the party of the second part, as hereinafter mentioned, in fee simple, clear of all liens and incumbrances*192 whatever, by a good and sufficient warranty deed, the real estate situated in the county of Wright and state of Iowa, to wit: The north fractional one-half of section number fourteen (14) in township number ninety (90), north, range number twenty-four (24), west of the fifty principal meridian, containing two hundred twenty-four (224) acres, more or less, according to government survey. This sale is made subject to the result and outcome of a certain action in the district court of Wright county, Iowa, wherein W. L. Watson is plaintiff and Fred Poncin et al. are defendants, appealed to the Supreme Court of Iowa, and second party shall in whole accept result of said suit and first party shall pay all the costs of said suit, for the sum of twelve thousand eight hundred eighty ($12,880.00) dollars, payable as hereinafter mentioned. And the said party of the second part in consideration of the premises hereby agrees to and with the party of the first part to purchase all his right, title and interest in and to the real estate above described for the sum of twelve thousand eight hundred eighty dollars, and to pay said sum therefor to the party of the first part, his heirs or assigns, as follows: Five hundred ($500.00) dollars on the execution of this agreement, and the party of the first part hereby acknowledges receipt of the same. Twelve thousand three hundred eighty dollars in payments as follows, to wit: First payment, first day of March, 1910, $2,380.00. Second payment — the balance of ten thousand dollars ($10,000.00) to be secured by first mortgage on said real estate due in ten years from March 1, 1910, and bearing interest at the rate of 5 per cent, per annum, payable annually, nonpayment of interest when due to cause the whole sums to become due, maker of note and mortgage to have option of paying $100.00 or any multiple thereof on any interest-paying day. With interest from March 1, 1910, at the rate of 5 per cent, per annum on all such sums as shall remain unpaid until all is paid, payable from March 1, 1910. And the party of the second part shall also annually pay all taxes and assessments that may accrue on said property as they become due or before they become delinquent and including the tax for the year 1910. And it is expressly agreed by and between the parties hereto that the time and times of payment of said sums of money, interest and taxes as aforesaid is the essence and important part of the contract; that if default is made of any of the payments or agreements above mentioned to be*193 performed by tbe party of tbe second part, in consideration of the damage, injury and expense thereby resulting or that may be incurred by or to the party of the first part thereby, this agreement shall be void and of no effect and the party of the second part shall have no claim in law or equity against the party of the first part nor to the above-mentioned real estate nor any part thereof, and any claim, or interest, or right, the party of the second part may have hereunder up to that time by reason hereof or of any payments and improvements made hereunder shall on all such default cease and determine and become forfeited without any declaration of forfeiture re-entry or any act of the party of the first part. And if the party of the second part or any other person or persons shall be in possession of said real estate or any part thereof, he or they will peaceably remove therefrom, or in default thereof he or they may be treated as tenants holding over unlawfully after the expiration of a lease and may be ousted and removed as such. But if such sums of money, interest and taxes are paid as aforesaid, promptly at the times aforesaid, the party of the first part will, on receiving said money and interest, execute and deliver at his own costs and expenses, a warranty deed of said premises as above agreed. And the party of the first part, upon delivering said deed, will furnish an abstract of title, showing title to said premises to be in him in fee simple. Second party agrees to pay all drainage taxes becoming due and payable from and after March 1, 1910, but first party shall pay general taxes for 1909. Witness our hands the day and year above written. S.- Y. Eggert. F. M. Rice.
And this bears an indorsement, as follows:
Dows, Iowa, December 14, 1909. For valuable consideration I hereby sell and assign unto G. H. Jameson all my right, title and interest in and to the within contract. [Signed] F. M. Rice.
Before making the contract with Hambleton and Howerton, Rice had talked with Eggert about this portion of the land and also with some attorneys representing Pratt, and was informed as to the price and terms at which he could buy
After the absolute assignment of the contracts to Jame-son, Rice brought an action in his own name against Hambleton and Howerton in the district court of Wright county, to recover damages for their breach of contract with him, and upon the trial of that action he testified to substantially the same facts that we have heretofore set out. Upon the trial of that action and at the close of the testimony, the defendants therein made the following motion: “Defendants at this time move the court to direct the jury to return a verdict for them for the reasons: First, that the evidence failed to show that the plaintiff furnished to defendant at any time abstract of title to the land in controversy showing that the title could or would be made good or that the plaintiff had directly or indirectly any interest therein.” This motion was sustained, and judgment was rendered against Rice. Thereafter he seems to have joined teams with Hambleton and Howerton, and, after discharging his former attorneys, he employed-others, and doubtless on their advice he came into this ease and his attorneys assisted in preparing the amended petition and his own cross-petition on which this case was tried. Neither plaintiff nor his associate Howerton ever made any tender of performance to Jameson, Eggert, or Pratt of any of their part of the contracts or agreements entered into with them; nor did they show any ability to perform at any time, save that Hambleton testified that, if he had been permitted to sell the land after Rice had assigned the contracts to a certain purchaser, he
Des Moines, Iowa, Oct. 13, 1909. F. M. Rice, Dows, Iowa — Dear Sir: I tried Monday a number of times to get you by ’phone, but failed to do so, and was called out of the city Monday evening and just got back this morning. I have been trying to find Mr. Howerton, who was to have been here a week ago, but have failed to reach him and do not understand what is keeping him away. I realize the fact that he should have been here and matters closed up. Mr. Bybee is just in and says he had an opportunity of turning the land so that we could get an advance of $2,000.00 or more, and if so, wants to know whether it could be turned and you folks get half of the profit, and while I would like to turn for money, yet if you can make the turn and wire me before Howerton gets back I will see that the deal goes through, or if he comes in before hearing from you I will communicate with you and this will stand good until I do. Of course if he does not come across and you do not make the deal as Mr. Bybee thinks, I will then try and protect you and take*198 the matter up with another party and close up as agreed upon. Am sorry for any delay or inconvenience it may have caused you. Anything further in reference to the matter please drop me a line at once. Yours truly, J. T. Hambleton.
Des Moines, Iowa, Nov. 10, 1909. F. M. Rice, Dows, Iowa — Friend Rice: I received your. card and have beeñ waiting so as to give you a definite answer as to when the deal on the Wright county farm could be closed up, but owing to sickness in the family of one party who has money to pay in, which has kept him away from home I have been unable to get things in shape so as to tell definitely when you could expect to have the matter closed up. I certainly will-hear from him within the next few days and will then advise you. Bybee is here. He talked of going up to Clarion but don’t know just when he expects to go. Is there anything new with you? I am Yours truly, J. T. Hambleton.
And Howerton wrote him the following letter:
Oskaloosa, Iowa, Nov. 7, 1909. F. M. Rice, Dows, Iowa —Dear Sir: I just arrived home and find your letter and card. I beg to say that I relinquished all my right in the Wall Lake farm deal to Mr. Hambleton before I left home. He said he had a friend and that he and his friend could handle it. I have a friend here that has the best livery and transfer barn in the state of Iowa who wants to trade for a large farm. Kindly send me accurate description of the 700 acres west of Dows. The lowest net price. Yours respectfully, W’ R. Howerton.
Having failed to get his money, he (Rice) placed the matter in the hands of his attorneys, and these attorneys wrote Hambleton the following letter :
Clarion, Iowa, Nov. 23, 1909. J. T. Hambleton, Esq., Des Moines, Iowa — Dear Sir: Mr. F. M. Rice, of Dows, Iowa, has placed in our hands the contract made between yourself and Mr. Howerton and Mr. Rice, for the purchase of land located in sections No. 14 and No. 23-90-24, this county, with*199 instructions to push the same unless satisfactory adjustment is made at once. Kindly let us hear from you regarding the matter, and oblige, Yours truly, Birdsall & Birdsall.
Practically the same letter was written to Howerton, 'as we understand it. Each addressee received the letter, but neither answered it; and on December 14th, of the same year, Rice made his arrangement with Jameson whereby Jameson was to cancel the loan and take and perform the contracts with the owners and treat the contracts and the property as his own. This Jameson did, and about February 21st, of the year 1910, he received deeds from Pratt and Eggert and executed mortgages back to them, all as provided in the Rice contract. It seems from this record that Howerton fully abandoned the contract on his part and relinquished all his rights therein, if he had any, to Hambleton. Hambleton says, however, that Rice did not comply with his agreement to furnish abstracts, showing title; that the $2,998 of the purchase price mentioned in his contract did not mature until proper abstracts were furnished and not in any event until March 1, 1910; that the contract was never abandoned by him and never forfeited by Rice or his assignee. The record shows that Hambleton was still holding onto his contract, or rather that he was trying to dispose of the land so as to make a profit on it, and it is shown that some time in February, of the year 1910, he worked up a trade with one Maine, for the property; that Maine went to see the land, saw Jameson, who informed him (Maine) that he (Jameson) was the owner of the land, but upon his return to Des Moines he and Hambleton finally agreed upon a trade, and on February 24, 1910, Hambleton wired Rice as follows: “Am ready to close balance contract. Shall I come. Wire at my expense. J. T. Hambleton.” Rice consulted with Jameson as to the answer to be sent, and the response was as follows: “Your message received. Have consulted Jameson. He will take $60 net if closed Saturday this week. F. M. Rice.”
Suit to quiet title was commenced March 3, 1910, but the bill was not changed to one for specific performance until
We neglected to say that the abstracts sent for the benefit of plaintiff and Howerton were kept some time without any objections being raised, and that on November 12, 1909, their return was demanded by the party who sent them. The letter was as follows: “Dows, Iowa, Nov. 12, 1909. Central State Bank, Des Moines, Iowa — Gentlemen: Some time ago I mailed to you two abstracts for you to let J. T. Hambleton and W. B. Howerton examine. They have had these abstracts long enough now and I wish you would please forward same to us at once. Very truly yours, O. M. Benson, Cashier.” The letters accompanying the abstracts were as follows: “Dows, Iowa, Sept. 23, 1909. Central State Bank, Des Moines, Iowa — Gentlemen : Inclosed please find abstract that is sent to you to be turned over to W. B. Howerton or J. T. Hambleton for examination ; same to be returned to us after it has served its purpose. Yours very truly, O. M. Benson, Cashier.” “Dows, Iowa, Sept. 13,1909. Central State Bank, Des Moines, Iowa— Gentlemen: Inclosed please find abstract sent to you to be examined by W. B. Howerton or J. T. Hambleton or both. After they have examined same, please return to us. Yours truly, O. M. Benson, Cashier.”
Appellants are not seeking to enforce either the Pratt or the Eggert contracts with Rice, save as they are subpurchasers of the land from Rice, and, if they were, they would not be entitled to that relief because they have at no time offered to perform either. They are standing wholly upon the Hambleton contract with Rice, saying that this they offered to perform according to its terms, and that this contract has never been legally forfeited. They also say that, as Jameson is not a good-faith purchaser of the land, they aré entitled to enforce the Rice contract with him to have specific performance against Jameson and are not obliged to compensate him for improvements made, because he was and is nothing but a mortgagee and the1 most that he is entitled to is a return of his money with interest. It is true, as already sug
We-shall not trouble to consider other propositions in the case, as the ones already stated seem to settle the controversy. The equities seem to be with defendant Jameson. We fully realize that there is a conflict in the testimony regarding some of the matters stated, and have recited what we believe the testimony shows the facts to be, without attempting to quote the evidence or to set out the statements of the witnesses.
The decree seems to be correct, and it is Affirmed.