Hogueland v. Arts

85 N.W. 818, 113 Iowa 634

Opinion

Deemer, J.

1 Appellee filed a motion to dismiss the-appeal because the notice thereof was signed “George W. Bowen and E. M. Powers, Attorneys for Plaintiff.” The notice recites that plaintiff appealed from the judgment, and is signed as indicated. Surely, an attorney may act for his client in giving notice of appeal. The notice shows that it was signed by the attorneys for and on behalf of their client, and it is sufficient. Searles v.. Lux, 86 Iowa, 61, and cases cited in 2 Enc. PI, & Prac. p. 214.

2 3 4 5 6 II. The petition alleges, in substance, that plaintiff is the owner of the premises; that one Park, his agent, was-instructed to- exchange the same for some property owned by Arts, provided that he (Arts) would pay $4,000 in cash in addition to the property; that he sent Park a deed for his property, with the name of the grantee left blank, for‘tbe purpose of effectuating tbe exchange, to be made when the $4,000 was paid; that Park, pursuant to his authority, met Arts, and orally agreed to the exchange; that he (Park) left plaintiff’s deed with one Wahl, instructing him to hold it until he (Park) returned to complete the exchange; that, in violation of his agreement, Wahl delivered the deed to Arts, who placed revenue stamps there•on, canceled the same in the name of the plaintiff, recorded the deed, and hurriedly moved into the property conveyed, without the knowledge or consent of plaintiff; that defendant failed and refused, and still fails and refuses, to carry •out the oral agreement of exchange; that the deed was never in fact delivered. The prayer is that the deed be set aside, that defendant be required to surrender possession, “and for such other and further relief as may deemed equitable in the premises.” After the filing of the answer, plaintiff filed an amendment to his petition, in which, among other things, he added the following to the prayer: “Or that, if said deed is found to be valid and legal, that the defendant, Arts, be compelled to convey to 'this plaintiff lot six, in block fifty-nine, in the seventh addition to Carroll, Iowa, and that he have judgment against defendant for four thousand dollars, with interest thereon at six per cent, from the 23d day of July, 1898, and a vendor’s lien upon lots 6, 7, 8 and 9, in block 79, in the Eleventh addition to Carroll, Iowa.” Defendant filed a motion to strike the amendment, which was sustained, and exception taken. Defendant’s answer was, in effect, a general denial, and a further plea that, after the transactions complained of occurred, plaintiff, with full knowledge of the circumstances, commenced action to recover the purchase price, and thereby elected to treat the sale as valid. To this plaintiff replied, stating that the suit was commenced by Parks without his knowledge or authority, and that, as soon as he learned of the suit, he caused it to be dismissed. After plaintiff filed his amendment to the petition, defendant filed a further answer, pleading that plaintiff had elected to treat the deed as a nullity in bringing this suit, and that he was not en flitled to tbe relief prayed in tbe amended petition; and further pleaded that by reason of the filing of said amendment plaintiff ratified the exchange, and could not sue to recover ' possession because of the non-delivery of the deed. Plaintiff moved to strike this second amendment because filed too late. This motion was overruled. Tie thereupon filed a demurrer to all the affirmative allegations of the answer. This demurrer was submitted with the main case, and apparently overruled, for the decree was for defendant. As no error is assigned on the rulings on plaintiff’s motion to strike and on the demurrer, they must be accepted as correct. The case was tried as in equity, and comes to us for trial de novo; but rulings on motions or demurrers cannot be reviewed unless error be assigned thereon. Powers v. O’Brien Oounty, 54 Iowa, 501; Patterson v. Jack, 59 Iowa, 632. In- coimection with appellant’s argument we find an assignment challenging the ruling on defendant’s motion to strike the amended prayer to the petition. This is sufficient to bring the ruling before us for review. University v. Livingston, 57 Iowa, 307. The question presented seems to be ruled by Humphrey v. Ringler, 94 Iowa, 185, where it is expressly held that a prayer that a deed be set aside for fraud; or, if it be held valid, that the contract price be recovered; and a vendor’s lien given, is neither inconsistent nor contradictory. Following that case, it must be held that the ruling on the motion was erroneous. See, also, Peck’s Ex’r. v. Price (Ky.) (4 S. W. Rep. 306; Henry v. Meighen, 46 Minn. 549 (49 N. W. Rep. 323, 646); Hiatt v. Parker, 29 Kan. 765 ; Railroad Co. v. Steinfield, 42 Ohio St. 449; Barlaw v. Scott, 24 N. Y. 45.

7 8 9 We come now to the merits of the case. The defendant made-no motion to transfer, and the ease was tried as in equity. It is now asserted that, if plaintiff did not show himself entitled to equitable relief, he cannot recover, although, under the facts pleaded and evidence adduced, he might have had -relief at law While this may be true in some cases, it is not so here. The facts recited, if proven, entitle plaintiff to a judgment for the possession of the property. He asked such relief in his petition, and if the facts justified, was entitled to it. Code, section 3775] provides that “the relief granted to the plaintiff, if there be no answer, cannot exceed that which he has demanded in his petition.” In any other case the court may grant him any relief consistent with the case made by the petition and embraced within the issues. See, also, Iler v. Griswold, 83 Iowa, 442; Laverty v. Sexton, 41 Iowa, 435 Wilson v. Miller, 16 Iowa, 111; Hoskins v. Rowe, 61 Iowa, 180; Rees v. Shepherdson, 95 Iowa, 431; McLachlan v. Town of Gray, 105 Iowa, 259, relied on by appellee, is not in point. There the proceeding adopted could not have .been maintained in any forum. Defendant’s contention that plaintiff had a plain and adequate remedy at law, and that the court properly dismissed the petition for that reason, is fully met by vdiat we have already said. But -we are not prepared to hold that plaintiff, under the facts stated, had no remedy in equity. He had the right to have the cloud removed from his title, and to have, the deed canceled. Equity alone could grant this relief. Peirsol v. Elliot, 6. Pet. 95 (8 L. Ed. 332) ; Hamilton v. Cummings, 1 Johns, Ch. 517; Larsen v. Burke, 39 Iowa, 703; Montgomery v. Shockey, 37 Iowa, 107; Hosleton v. Dickinson, 51 Iowa, 244; Dederer v. Voorhies, 81 N. Y. 153; Beere v. Beere, 79 Iowa, 555; Hood v. Smith, 79 Iowa, 621. The evidenee show's that shortly after the transactions in question occurred that Park commenced action in the name of Hogueland for specific performance of the contract. This is claimed to be an election to treat the contract as. valid, and1 a bar to the suit to recover possession of the property transferred to defendant. Had that action been commenced by authority of plaintiff, it w'ould, perháps, be a bar to his action to recover possession of the premises on the ground of fraud. But,, as that suit was dismissed, it would not bar this, action so far as it asks specific performance of the contract. We are constrained to hold that Park had no •authority to commence that action, and as plaintiff dismissed it as soon as he discovered it had been brought, it should not be treated as an election, and is no bar. A careful reading of the evidence convinces us, however, that the minds of the parties never met on the contract. Park stated that he wanted $4,000, and Arts said he would give $3,500, in addition to his property. The deed was delivered to Wahl or to Arts on Park’s assumption that he was to get $4,000 in cash, and Arts understood — if he had any-understanding about it — that he was to give $3,500. With nothing more said, Arts affixed the proper revenue stamps to the deed, canceled them in the name of plaintiff, filed the deed for record, and immediately moved into the property. -'Clearly, there was no exchange. There- was no such delivery of the deed to Arts as to make it effectual to transfer title. It was left in the custody of one Wahl, and Park promised to return in a few days, close up the transaction, get his deed from Arts, and the money that he (Arts) was to pay. Arts looked at the deed when it was first made out, and handed it back to Park; and thereafter Park returned with the deed, and left it in the custody of Wahl, as stated. In -any event, the minds of the parties did not meet in the transaction, and the taking and recording of the deed constitutes a cloud on plaintiff’s title, and entitles him to a cancellation of the instrument. Had there been a meeting of the minds, and a delivery of the deed, the case would present a different aspect. But there was no meeting of the minds, ■and no delivery of the deed. Of course, a delivery to the grantee pursuant to contract passes the title for such a delivery cannot be escrow. But delivery involves not only the actual passing of the instrument, but also an intent to make it effectual. There was no such intention in this case. Steel v. Miller, 40 Iowa, 402; Moody v. Dryden, 72 Iowa, 461; Sutton v. Smith, 88 Iowa, 238; Head v. Thompson, 77 Iowa, 263; Jackson v. Lynn, 94 Iowa, 152. There should have been a decree cancelling the deed, and a.judg ment finding plaintiff entitled to the possession of the property, and ordering the surrender of the same by defendant. The case, will be remanded for a decree in harmony with the opinion, or, at plaintiff’s option, he may have such a decree in this court. — Reversed.