King v. Dickson

86 N.W. 263, 114 Iowa 160

• Court: Supreme Court of Iowa
• Decided: May 22, 1901
• Status: Published

Opinion

Given, C. J.

2 3 I. The questions to be considered involve an inquiry into the title to the lands for which the money in dispute was realized. The facts concerning the title are substantially as follows: On October 25, 1888, Mary Guthrie Brodia executed her will, providing as follows: “I give, devise, and bequeath my estate and property, real and personal, after my debts are paid for sickness and funeral expenses, to my sister, Isabelle Guthrie, for her maintenance, as long as she may live, and at her death, after any necessary debts occasioned by her sickness and funeral expenses are paid, I give, devise, and bequeath my estate and property, real and personal, as follows; that is to say.” Following this are six specific devises of money in the sum of $100 each to persons named, and then the following: “To Baldwin & Maxwell, Story county, Iowa, a firm composed of F. M. Baldwin and J. W. Maxwell, I give, devise, and 'bequeath lot one (1) in the southeast quarter (J) of the southwest quarter (J) of section twenty-two (22),'township eighty-two (82) north, of range twenty-two (22) west of the fifth (5th) P. M., Iowa, containing two and six-hundredths (2.06) acres, as the same is known and designated on a recorded plat now on file in the recorder’s office of Story county, Iowa. And, after the above-named parties have been paid the several amounts bequeathed to them, I desire that the balance of my property, personal and real, be equally divided between David Guthrie of Montreal, Canada, Mary Guthrie of Montreal, Canada, and Mary Peters of Carmonistee, Forfeshire, Scotland. Mrs. Brodie died June 2, 1891. Her will was probated in September following, and Isabelle Guthrie took possession of the property, and continued to occupy and use the same until her death, in February, 1895. On October 25, 1891, Balwin & Maxwell made a deed of general assignment to Jay A. King for the benefit of their creditors, of their property, real and personal, “in which they have any right or interest whatsoever; the same being more fully and particularly described and enumerated in the schedule thereof to be hereto annexed.” On July 1, 1892, Baldwin & 'Maxwell made a settlement with their creditors, J. Y. Harwell & Co-, advancing the money for that purpose, and taking a conveyance from Jay A. King, assignee, to II. J. Liggett, as trustee, to secure the advance, which conveyance was approved by the court. This conveyance describes specifically the real estate conveyed, and concludes as follows: “The intention being to hereby convey to the said Howard J. Liggett all the real estate in Story county, Iowa, received by him by virtue of the deed of assignment, above referred to, excepting only such as has been by him conveyed, as such assignee, to other parties previously to this date.” Mr. Liggett executed to Baldwin & Maxwell a writing agreeing to return to them any surplus after selling sufficient of the property to reimburse Harwell & Co. On October 31, 1894, Mr. Liggett, as trustee, sold and conveyed to Mary Baldwin, of the property received by him from the assignee, certain real estate specifically described, the description concluding as follows: “The intention of this conveyance being to convey all the real estate unsold that was conveyed to him by J. A. King, assignee, for Baldwin & Maxwell, and situated in Story county, state of Iowa.” Said lot 1 is not described in either the deed of general assignment or in the deeds to and from Liggett, trustee. It will be observed that these conveyances were all made after the death of Mrs. Brodie, and during the lifetime of Isabelle Guthrie, and while she was in the use and possession of the property. On June 20, 1895, Mr. Baldwin conveyed to his wife, Mary, the undivided one-half of said lo.t 1, and on February 18, 1896, Mr. Maxwell conveyed all his interest in said lot 1 to his wife, Marietta. On May 16, 1896, Mr. and Mrs. Baldwin and Mr. and Mrs. Maxwell joined in a deed conveying said lot 1 to the defendant, N. W. Dickson, he at the same time, executing a writing acknowledging that he had paid Marietta Maxwell no consideration for her interest in said lot, and reciting' as follows: “That this transaction is for the purpose of facilitating the sale of the property, and she will control the same as heretofore. 1 agree to deed the same at any time, when offered a price and terms to suit her; or deed it back to her if not sold within ninety days from this date.” On September 22,- 1896, J. L. Smith, as special administrator of the estate of Mary Brodie, deceased, commenced an action against Baldwin & Maxwell, F. M. Baldwin; J. W. Maxwell, Mary Baldwin, Marietta Maxwell, H. J. Liggett, and N. AY. Dickson, the original' notice of which was duly served on each of said defendants. In his petition he asked judgment against F. M. Baldwin and J. AY. Maxwell for $2,200 on their six promissory notes dated September, 9, 1891, executed to plaintiff, administrator. He alleged that of said real estate lot 1 passed .to Baldwin & Maxwell; that said conveyances to 'Mrs. Baldwin and to Mrs. Maxwell were made without consideration, and to hinder and delay creditors; and that the conveyance by them to Dickson was in trust, and that Baldwin & Maxwell, Mary Baldwin, and Marietta Maxwell owned said lot 1; and writ of attachment was asked and issued against, the property of F. M. Baldwin and J. AAT. Maxwell, and was levied on said lot 1. In an amendment to his petition said administrator alleged that said lot 1 passed by the deed of general assignment to King, and by the deed from King to Liggett; that the debt due to him was prior to conveyance to Liggett; that Liggett paid no consideration for the conveyance; that he holds the lot as the property of Baldwin & Maxwell, and for the purpose of keeping it beyond the reach of their creditors. He also alleges that the other conveyances mentioned above were without consideration, and to hinder and delay creditors, and asked that the land be held subject to his claim, and for special execution against said lot. The defendants Baldwin & Maxwell, F. M. Baldwin, Mary Baldwin, and N. W. Dickson 'answered, admitting' said conveyance, and alleging that the conveyance by Mary Baldwin and her husband to Dickson was as security for $500. They denied that Marietta Maxwell and J. W. Maxwell have any title in said property, and alleged that Mary Baldwin is the absolute owner thereof, subject only to the claim of Dickson for said $500 by virtue of the sale and deed to her by H. J. Liggett. They asked decree dismissing plaintiffs petition, and decreeing that Marietta and J. W. Maxwell have no interest in said property. Said defendants also answered plaintiff’s amendment to his petition, denying every allegation not admitted. They admit the execution of the general assignment as alleged, the conveyance from King to Liggett; and that all the property passed thereunder. ■ The defendants J. W. Maxwell, Marietta Maxwell, and Baldwin & Maxwell, by J. W. Maxwell, answered, claiming that said lot 1 is the property of Baldwin & Maxwell; that TI. J. Liggett had no authority to sell or convey the same to Mary Baldwin, because the same was to be conveyed to the firm after the firm debts had been paid. This answer is signed “J. W. Maxwell, Baldwin & Maxwell, Marietta Maxwell, by J. W. Maxwell, Defendants.” On the twenty-seventh day of January, 1897, the court found in favor of the plaintiff, Smith, administrator, against Baldwin & Maxwell, F. M. Baldwin, and J. W. Maxwell, for the balance due on the notes sued upon. The court further found that said lot 1 passed under the will of Mrs. Brod-ie to Baldwin & Maxwell; that it passed by the general assignment to King, and from King to Liggett, and from Liggett to Mary Baldwin; that the transfer to' Dickson by Mary Baldwin was as security for the $500; and that the several conveyances through which the property passed to Mary Baldwin were not in fraud of, nor for the purpose of hindering and delaying the creditors of Baldwin & Maxwell. It was ordered that the plaintiffs petition, so far as it claims a lien against, lot 1, and the attachment thereon, be discharged, and that Mary Baldwin be quieted in her title, subject to said lien of $500. A decree was prepared by counsel for defendants and submitted to the judge, who, after making some corrections, signed and approved the same, and it was' placed with the files in the case, but through oversight was not entered upon tho records, as required by the Code. At the August term, 1897, the plaintiff, Smith, presented his petition asking that said decree be expunged from the record, and set aside, for various reasons assigned in the petition. Notice of this application was duly served on all the defendants, and they appeared and answered jointly, joining certain issues, and the court, after a most thorough and careful review of said ease, dismissed the petition to set aside said decree. After the rendition of said judgment and decree, N. W. Dickson agreed with Mary Baldwin to sell said lot 1 for her as her agent, for a commission of $50, and thereafter sold the same for $1,800, one-half of which, less his commission, he has paid to Mrs. Baldwin, and holds the other half subject to .the judgment and order of the court.

4 II. It is conceded that the amount in the hands of the defendant, Dickson, is $875, and the contention is whether the plaintiff, as assignee of Mrs. Maxwell, or the intervenor, Mary Baldwin, is entitled to this amount. Counsel for appellant say, if the title to said lot 1 was in Mary Baldwin alone at the date of the sale thereof by King, judgment must be for the intervenor, but, if the title was in both Mrs. Baldwin and Mrs. Maxwell, judgment should be for the plaintiff ; and then they proceed to discuss the question of title. The first question to be determined is whether this dispute as to title was adjudicated in the ease of Smith administrator, against Baldivin & Maxwell and oth,ers so as to bind Mrs. Maxwell. Let it be conceded that Mrs. Maxwell appeared in that action and to the cross petition of ' Mrs. Baldwin, yet the question must be answered for the reason that no judgment or decree was entered of record in that case. In Callanan v. Votruba, 104 Iowa, 672, we said as follows: “But, until tbe record is prepared, no evidence exists on tbe rendition of tbe judgment. These records are under the control of the court (section 248 of the Code), and through them it speaks the final adjudication defined by the statute as a judgment. Until so rendered, there is no judgment. The Code contains no provisions relating to judgment forms signed by the judge, and these amount to no more than directions for judgments. Until recorded, they were not such, but merely evidence that the court had ordered judgments and approved ■their form.”

5 III. We now inquire whether Mrs. Maxwell had any interest in said lot 1 at the time defendant, Dickson, sold it for the $1,800. We all agree that the interest of Baldwin & Maxwell, derived under he will, passed to their assignee by their general assignment for the benefit of creditors, but the majority hold that no title to lot 1 passed by the conveyances from King, assignee, to II. J. Liggett, trustee, nor from Liggett, trustee, to Mary Baldwin, for the reason that said lot 1 is not described in said, conveyanees. They hold that those conveyances only passed title to the real estate specifically described therein, and that what follows the specific description does not convey anything, but merely declares an intention by such description to convey the unsold real estate in Story county that passed under the general assignment; following the rule announced in 1 Jones, Real Property, section 325, and Thayer v. Finton, 108 N. Y. App. 394 (15 N. E. Rep. 615). The writer does not concur in this conclusion. I think that the language of these deeds to and from L’ggett, trustee, shows plainly a purpose to then and thereby convey the unsold real estate in Story county, and not an intention to convey in the future. In Land Co. v. Randell, 82 Iowa, 89, the deed, after specifically describing a number of lots, continued as follows: “Also together with ,all other lands that may not have been heretofore described belonging to said South Park Company.” It was held that this passed title to all the property owned by the plaintiff’s grantor at the time of said conveyances. It seems to me that the intention to convey by these deeds the unsold property in Story county is quite as apparent as in the Land Company’s Case. It follows from the conclusion of the majority that no title to said lot 1 passed, by the deeds to and from Liggett, trustee. This being true, the title remained in Xing, assignee, until the settlement of the affairs of Baldwin & Maxwell under the general assignment, and, upon that being accomplished, the title reverted to Baldwin & Maxwell, and their interest passed, by the deeds executed by them respectively, to their wives. It follows, therefore, that Mrs. Baldwin and Mrs. Maxwell are equally entitled to share in the $1,800 for which the lot was sold, and that the plaintiff, as assignee of Mrs. Maxwell, is entitled to recover from the defendant, Dickson, the balance of the purchase money remaining in his hands. — : Affirmed.