181 Iowa 860 | Iowa | 1917
Lead Opinion
I. The investigation and decision of this appeal have been made exceedingly difficult. The original abstract for the appellants contains 37 pages; their amended and additional abstract, 124; the abstract and denial of the appellees, 37. An attack upon this last adds 6 more pages of print. When it comes to stating the issues, appellants, in effect, do no more than to refer us to pages 3 to 29 of their abstract. Of this, page 3 to 19, inclusive, mostly set forth various pleadings which were afterwards substituted for, and appear to be out of the case. The arguments presented and the citations made afford opportunity for months of work. It is impracticable to attempt an exhaustion of this presentation. We find ourselves able to reach a conclusion satisfactory to us by a consideration of the paper issue made on parts of the amended and substituted petition, undisputed or conceded matters, the evidence, some of the authorities cited, others gathered by an independent investigation, and of the decree of the trial court.
The following matters are found either by well supported findings of the trial judge or are otherwise fully established, to wit: About the first day of March, 1892, the defendant Patrick Ratigan, Sr., by deed conveyed to his son
After the deed from son to father was. made, the father sold 40 acres of the land, to wit, the NW% NWi,4 of Section 34 aforesaid, to one Setz, with the consent and acquiescence of his said son. The father received therefor the sum of $3,600, out of which he subsequently paid debts owed by his son in about $1,000, paying same out of the proceeds
(a) The plaintiffs are not barred to recover in this suit on the claim of appellants that the deed from son to father, of date December 2, 1902, was made to hinder, delay or defraud creditors. That was not the purpose of said deed. The purpose for which it was made does not operate to deny to plaintiffs the relief they seek.
(b) The suit brought is not barred by the statute of limitations. The defendants and interveners deny that the plaintiffs ever had a right to sue. The plaintiffs concede that they had no such right until after the son Patrick died, which was in 1913, and they began this suit in 1914.
(a) The defendant Patrick, if indebted at all on account of the sale to Setz, owes the sum found due by the trial court, to wit, $2,600, with interest at 6 per cent thereon from and after the 5th day of November, 1913.
(d) It is contended that the conveyance pendente Hie was meritorious and justified, because the son-Patrick had received much more from the father than the other children, who were grantees in the conveyance pending suit. Let these last conveyances have been ever so well justified, the grantees therein must stand or fall by the outcome of this suit. If that puts the title of what was last conveyed in these plaintiffs, then these last grantees can take nothing,
Grant, for the sake of argument, that all these are relevant, and correctly state abstract law. Grant further, for the sake of argument, that complaints made of reception of testimony would be, in the ordinary case, well made. These concessions eliminate much from our consideration, and subtract much from the support of the decree complained of. , But manifestly it does' not follow that granting what we haye deprives that decree of all support. It is self-evident that the inhibition upon establishing an express trust by parol evidence is not material if the court can find that the trust was created by a writing which is in the control of the party charged with the trust. There was a claim that such is the situation here.
The trial court may well have found that there was such written declaration of trust. To be sure, it does not declare by its expressed findings that- it so has determined. But that is immaterial. Findings in án appeal in a case triable do novo do not bind us, and their -absence does not affect Us. It suffices that, under the pleadings and the evidence, the relief awarded can rest upon a determination that there was such a writing. Appellant concedes that the testimony was in sharp conflict, and enough will be said in another connection to make clear that we should not interfere with such finding by the trial court. That is to say, we shall point out elsewhere why the testimony for the appellee is entitled to more weight than that which counters it.
It is conceded that, at the time the deed was made, upon which it is now sought to ingraft a trust, the plaintiff Anna and her said husband were in possession of said lands, and living in a dwelling house thereon; they were then enjoying the use of said lands and farming the same, and continued to make use thereof as a home up to the death of the son Patrick in November, 1913; Patrick and the said Anna, from 1902 on, claimed to own the land, and possession thereof was open, notorious and adverse; it was maintained under a claim of right to own the same for use during the life of the son and his wife, and thereafter, fee was to vest in any children living at the decease of Patrick, Jr. During all the time between December, 1902, and November, 1913, the son and wife paid all taxes assessed against the land; the incumbrance upon the same when the deed of December 2d was made was continued upon the land; and-plaintiff Anna and her husband discharged interest accruing thereon from time to time. Since the death of the son, the said Anna, his wife, and his said children have occupied said lands and have used the same and enjoyed all the in
The alleged trust agreement is that, notwithstanding the absolute deed to the father, the grantee should deal with the lands as a trustee, to the end that the son might not impoverish his wife and children. How could such trust be executed? Clearly, it would defeat it to make a reconveyance to the son while he was living, since it is undisputed that the habits which it is claimed made the trust agreement necessary continued to the time of his death. Since a reconveyance was no part of the claimed trust arrangement, its performance could be' effectuated only by permitting the son and his family to use the land, to deal with it as owners in every way except to alienate or incumber it. When the father permitted such use while keeping the paper title where it was put for safety, he was executing the trust on his part. The cestuis were executing it by maintaining possession, cultivation, and the payment of taxes and interest on incumbrances. We are of opinion that, in such circumstances, most of the testimony complained of was rightly received; that the sole question is sufficiency; and that the trial court did not act without sufficient support in the evidence in declaring that the trust agreement claimed had been entered into, nor in holding that the time had come when the deed relied upon by the defendants should be allowed effectiveness no longer. In the very nature of things, we cannot go into an analysis of that evidence, and to do so beyond stating our conclusions upon it would serve no useful purpose. In the words of the appellants themselves, what was said, and done in the office of the conveyancers when deed to the father was executed is in conflict, the plaintiff Anna relating one story, and the defendant Patrick a different one; and these were the only two witnesses present.
Rehearing
Supplemental Opinion on Rehearing.
I. The trial judge found that the father of Patrick Ratigan, with the consent and acquiescence of the son, sold and conveyed to one Setz 40 acres of the tract involved in this suit, to wit, the NW% NW^ Section 34; that he received therefor $3,600, out of which he subsequently paid $1,000 to extinguish debts owing by the son; and it ordered that the plaintiffs have of the said Patrick J. Ratigan, Sr., the sum of $2,600, together with interest at 6 per cent from the 5th day of November, 1913. We held that this finding was sustained by the evidence. We are asked to reconsider this holding on the claim that the evidence does not sustain this finding. The appellees counter that this claim is “now set up as the basis for the reversal of the personal judgment for the first time in this case.” The record does not sustain this assertion. The very point now urged to induce us to reconsider was fairly made in the presentation on original submission.
II. There crept into our opinion a statement that the father raised the $1,000 which he applied on debts of the son out of part of the land covered by the deed from son to father, ivhich we have impressed with a trust, and which said part the father sold to Setz with the acquiescence of the son. There is no conflict in the testimony, and plaintiff Anna Ratigan herself is one witness who makes it clear that this $1,000 was raised on the father’s own land “across the road,” and on an 80 which he bought from Day and Hess, and that the payment to the creditors was made about 7 years before any land was sold by the father to Setz. We find on reconsideration that this is an erroneous statement,
TIT. It viill be remembered that the plaintiffs, and not the father, Patrick Ratigan, are seeking a change in the wording and effect of the deed made from son to father. That is to say, if the deed remains as written, the plaintiffs have no title to or interest in any of the 120 acres, 40 of which were sold by the fátlier to Setz. It follows that, though 80 acres of this 120 stand‘affected by a trust, it may still be true that the 40 acres sold were not so impressed. The burden was on the plaintiffs to establish the trust as to each and every part of the 120-acre tract. We held that there was such trust, influenced to a great extent by the declarations made by the father. On re-examination, we And that, while he did make many such declarations as to 80 acres of the land, whereupon the dwelling house of his son was, he never made any such as to this 40 acres sold to Setz; that as to it he always took the position that he owned it absolutely; that he qualified all his admissions by referring to the 80 acres; and that the physical condition and relation of the 40 acres to the balance of the tract is such as that a trust for the benefit of the son and grandchildren might well have been intended as to the 80 acres, and not intended as to the 40 acres. We are constrained to hold, upon this further examination, that the plaintiffs have not established their case as to said 40 acres, wherefore Patrick Ratigan, Sr., is not chargeable with the $2,600 and interest thereon with which he was charged by the trial
The opinion will, therefore, be modified to the extent of relieving Patrick Batigan, Sr., from liability to pay said sum to the plaintiffs, or any of them. • In all other respects, the petition for rehearing is overruled, and the original opinion adhered to.