165 Iowa 508 | Iowa | 1914
It is with great difficulty that we have been able to find out just what the facts are as pleaded by plaintiff to which the demurrer and motions were sustained. There was a petition, an amendment to the petition, second, third, fourth, and fifth amendments to the petition, all of which were very long, and the abstract and amendments thereto contain nearly 45 pages of printed matter, which it is claimed constitute a record of the various pleadings, motions, and demurrers filed, withdrawals of .pleadings, decrees, etc., and, if we make any mistakes of fact, it is due wholly to the fault of counsel, who should have agreed upon the record, as it involves nothing but the sufficiency of the pleadings attacked by motion and demurrer.
The questions in the case are the sufficiency of the pleadings attacked as a matter of law, and all matters of fact properly pleaded by plaintiff, as distinguished from conclusions of law or inferences not warranted by conceded facts, must be taken as true. The demurrer cannot be treated as a “speaking” one, .and we cannot, therefore, consider any fact not alleged by the plaintiff. In other words, defendant’s demurrer and motion cannot be aided by anything outside the record, although it be based upon matters which might properly be pleaded in defense, even though these facts be true, and shown by some other record aside from what is now before us. We have had to resort to the transcript, and, at the risk of being tedious, we have extracted therefrom the following facts, gathered from the various pleadings attacked:
Tbe partnership at one time owned tbe land in controversy, although the title stood in tbe name of Brigbam, and on September 2d, of tbe year 1889, Brigbam made a conveyance of tbe property to McAllister; tbe conveyance was in form a deed, but it was in fact intended as security for tbe indebtedness of Salinger & Brigbam, tbe agreement being that there should be a reconveyance whenever the indebtedness was discharged, or sooner, if tbe partnership had an opportunity of selling tbe land, and in tbe event of such sale the indebtedness to McAllister should first be paid, and tbe remainder, if any, should be kept by tbe firm. Tbe partnership retained tbe actual possession of tbe land, and on October 1, 1891, McAllister reconveyed tbe land to Brigbam.
On November 16, 1891, an agreement was made between McAllister and tbe firm whereby tbe firm gave McAllister three notes for $2,400 each, due November 16, 1895, 1896, and 1897, respectively. Tbe writing then executed reads as follows:
On this day Benj. I. Salinger and L. P. Brigbam have made their three notes for $2,400 each drawing. 8%, due November 16, 1895, 6 and 7 respectively, no interest payable until January 1, 1892, annually thereafter to H. C. McAllis
Shortly after the making of this agreement, McAllister took possession of the land which had been deeded to him, with consent of the partnership, under a verbal agreement that he should hold possession and operate it for and on account of the partnership, and continue to use and operate it until the indebtedness of the firm was satisfied. He did in fact have possession under this agreement until July 11, 1893, or March 7, 1896; the exact date being a little obscure. In the meantime, and early in the year 1892, Brigham died, and Salinger became the sole surviving partner. In the year 1893 Salinger, as surviving member of the partnership, and on his individual account, had some negotiations with McAllister, resulting in the execution of a written agreement of date July 11th of that year, reading as follows":
Muscatine, Iowa, July 11, 1893. On this day B. I. Salinger gives H. C. McAllister his note for $300 due in one year, and his seven notes for $500, each due in 2, 3, 4, 5, 6, 7, and 8 years respectively. These notes are in satisfaction of all due McAllister from the late firm of Salinger & Brigham and they operate as a full mutual discharge and release of all matters and dealings between said parties. For collateral to secure said notes, B. I. Salinger shall deposit with H. C.
Plaintiff alleged that:
These notes were given and received in lieu of all other evidences of debt heretofore executed to McAllister by said partnership; that they were given by Salinger as surviving partner as a renewal, extension, and continuation of what was then due on notes which had been signed by the partnership ; that as much as the sum of three notes was outstanding at the time of Brigham’s death on notes signed by the partnership; that in such settlement there was merged whatever indebtedness to McAllister had theretofore been existing in any form; and that said notes, given in pursuance of such settlement, evidenced the debt secured by the mortgage now in controversy. In the year 1894, McAllister stated to various persons that he was owner of said notes given on July 11, 1893, and that said notes were secured by the land in suit here.
On March 6, 1896, a suit was brought against McAllister and others by one Culbertson, in which it was claimed that the land in suit belonged in fact to Salinger & Brigham, and on the 7th of that month McAllister made a deed to his son Lucius for an expressed consideration of $13,000. This deed was not recorded until June 30,1899. It is alleged that this deed was without consideration, fraudulent, and void, because made with intent to defraud, not only the creditors of Brigham, but also those of McAllister, the grantor, and that the grantee hid knowledge of the fraud; and that the transfer was in violation of the trust.
It is also alleged that, at the time of the making of this conveyance, H. C. McAllister was mentally incompetent and lacking in capacity to make a deed. H. C. McAllister died in March of the year 1898, and one Burnett was appointed
It is further alleged:
That, when said Lucius McAllister took said deed, the said H. C. McAllister was mentally incapable to execute same. That the same Lucius then knew this, or could have ascertained it, and that he induced the making said deed while sustaining confidential relations with said H. C. McAllister. That when said Lucius took said deed he knew, or had good reason to believe, that his said grantor had no lawful right to make deed, and that it was being made for an improper and unlawful purpose. That said deed to Lucius was wholly without consideration, and made for the purpose of wrongfully depriving said partnership and said Salinger of said land, and was made for the purpose of cheating the creditors of said Brigham, or of H. C. McAllister, and to hinder and delay any such creditors in the collection of their claims. That said deed, and the quitclaim deeds hereinafter referred to, were made as a part of a plan to pass said land to the heirs of H. C. McAllister, free from the just claims of said partnership, and of said Salinger, and free of any other just claims that might exist against either said Brigham or said II. C. McAllister, and that, when said deed was taken, the said Lucius either well knew all this or had such information and notice as, reasonably pursued, would have advised him of it. That thereafter the said Lucius McAllister pretended to make quitclaim deeds for the said Osceola county lands to defendants Celia Brigham and Anna M. Burnett, and that said defendants Brigham and Burnett have no right in said lands other than such as may have 'been granted to them by said pretended quitclaim deeds. That said deeds were made and taken without consideration, and that grantees well knew the rights of this plaintiff and said partnership in said lands' when they took said deeds, or had notice of such facts as did and should have advised them of such rights.
Further it is alleged that:
In August, 1899, Lucius made a pretended deed to one Dougherty, purporting to sell the land for $12,000, or $1,000 less than the price which the deed to Lucius recites he paid to H. C. McAllister more than three years earlier. When the deed to Dougherty was made, Lucius and he entered into a secret contract, under which ’ Dougherty gave his note for said $12,000, with condition that Dougherty should reconvey on demand on the return of his said note. A reconveyance was effected after the death of Dougherty by means of a friendly suit in probate. Then follow allegations that a suit was begun by Culbertson in March, 1896, and certain things were done therein up to January 17, 1905. That to this suit Lucius, representing H. C. McAllister, became a party on December 9, 1897, and in which he, as administrator, was
After a ruling sustaining defendants’ demurrer to the petition pleading the facts above recited, plaintiff filed au amendment to the petition, in which he made the following additional allegations:
McAllister died in March, 1898, at which time three of the notes given on July 11, 1893, and aggregating $1,500, had not yet become due; that the representatives of H. C. McAllister brought suit on all notes given on July 11, 1893, before the statute of limitations had barred any; that the bringing of the suit stopped the running of the statute, and that such suit was not terminated until January 13, 1911; that a deed made by H. C. McAllister to his son Lucius was volunteer and fraudulent and made to defeat the claims of plaintiff and his partnership and other creditors, and that said deed was kept for years from the record; that when it was put on record, a pretended deed was made by Lucius to one Dougherty, with the secret agreement to take a note for the price, which was less than the one pretended to have been paid by Lucius, and that reconveyance should be made on the surrender of the note, and that such reconveyance was finally effected; that later pretended quitclaim deeds were made by Lucius to his two sisters and codefendants, which were volunteer and fraud
The defendants’ demurrer to the petition before the introduction of this last amendment to the petition was on the following grounds:
The facts stated in petition and amendments thereto do not entitle plaintiff to the relief demanded. The petition as
The motion to. strike the amendment filed after the ruling on the demurrer was bottomed upon the thought that nothing new or material was added to the original petition, with all its amendments prior to this last one. Unless we have overlooked something in our effort to untangle these various pleadings, with their amendments, striking out various allegations and substituting others, the foregoing are the material allegations which were admitted by the demurrer, and the motion and the questions presented involve the correctness of the rulings on the demurrer and motion.
I. Some of the points made by appellee in support of the ruling of the trial court are obviated by the fact- that the matters relied upon were expressly excluded from the record by amendments withdrawing the allegations, or striking the same, and substituting others, and in various ways eliminating them from the case.
From these allegations it appears that McAllister’s title was at .all times based upon the original deed, made to him by Brigham, and that the title as now claimed by defend
Why the allegation as to the reconveyance to Brigham was inserted we are at a loss to know, but, whatever the purpose, there is not enough in the record to defeat the plaintiff’s claim that the title in the defendants rests upon a deed, which, though absolute in form, was intended as security for a debt. It may be, of course, that the proofs when the case goes to trial, if it ever does, will so change the situation that plaintiff must be defeated because of this reconveyance, and the further fact that all his claim of title to or interest in the property, and his right to redeem, rests simply
In order to strengthen the plaintiff’s claim, he pleads that, after the making of the contract, McAllister was claiming that he held the land as security for the notes that day executed by him to McAllister. There is nothing in the agreement itself which would have prevented McAllister from claiming that he still held title to the land as security for the agreed indebtedness. At this time the agreed indebtedness amounted to $3,350 (or $3,500), and whether or not the land was taken
The trouble here is that, while the agreement of July 11th is quite specific, it does not in terms release any securities which McAllister may have had for the debt which it is said was renewed, nor does it indicate that the land was taken into account in fixing the amount of the indebtedness. In its final analysis, the question here is: Would parol evidence be admissible were McAllister seeking to use the land as security for the indebtedness represented by the Salinger notes, or attempting to foreclose the grantor’s right of redemption? If McAllister would have had the right, under the allegations of the pleading, to prove by parol that, notwithstanding the agreement, he still held the land as security for the indebtedness represented by the r.enewal notes, that day executed, Salinger has the same right, save that he perhaps might stand in the position of having paid the original debt, and, as surviving partner of his firm, be entitled to a return of the land which had been conveyed as security for the. indebtedness, unless, of course, the land was taken into account at the time the settlement was made. Down to that time there does not appear from the pleadings to be any question about McAllister’s having accounted for all the
Here a question of fact may arise upon the trial, which it will be difficult for plaintiff to establish. With that question we have no present concern. We must accept the facts as stated, and, unless it be apparent that parol testimony would not be admitted under any circumstances to prove the facts alleged, we must accept the statement in the pleadings as being true. If the paper writing be incomplete, or ambiguous, and if it does not in fact amount to a release and satisfaction of the security given by the deed, then parol testimony as to the transaction, from competent witnesses, may be received to show the exact nature and character of the settlement. If from this it should appear that the land was considered in the settlement and that from that time on McAllister held the absolute title in virtue of the settlement, this will be an end of the case.
This action was commenced in June of the year 1909, and part of the notes secured by the deed did not mature until July of the years 1899 and 1900, respectively. Moreover, it seems that action was brought on all the notes in August of the year 1900, which was not terminated until in August of the year 1911. Defendants say that in this action reeov
Because of the prolixity of the pleadings* and the trouble in ascertaining just what are the facts, we have had more than ordinary difficulty in disposing of the case. We reach the conclusion upon the whole record that the last motion, which was in effect treated as a demurrer, should not have been sustained, and that the plaintiff made out a case on paper, calling for equitable relief.
The judgment must therefore be, and it is — Reversed.