Plapp v. Meyer , 40 Iowa 705 ( 1875 )

Day, J.

It is not questioned that defendants occupied the premises in controversy, during the time claimed. The claim of defendants is that they occupied one undivided half of the premises, under a deed of trust to the defendant Constantina Meyer, as the guardian of the minor heirs of J. B. Meyer, deceased, and that they occupied, the other undivided half, under a contract of purchase of the same from plaintiff.

The defendants allege in the answer that John Baumeyer owned an undivided half of the premises, and that about the 7th day of December, 1872, he sold luis interest therein to plaintiff. A deed was introduced showing a conveyance from Baumeyer, of liis interest in the premises to plaintiff on the 27th clay of December, 1872. It is clear then from the allegations of the answer, and the proof introduced that plaintiff did acquire one undivided half of the property in question from Baumeyer. If the plaintiff from any other source acquired title to the other undivided half of the premises it follows, that the decree of the court holding- the defendants for the payment of rent on one undivided half is right, for, as said before, the occupancy of the premises is not denied, and defendants claim to have purchased only one undivided half of plaintiff. In regard to the interest purchased of Bau-meyer, there can be no real controversy.

The material facts respecting the remaining interest we will endeavor to state as nearly as may be in chronological order.

On the 5th day of September, 1867, Anton Meyer and J. Bobletber purchased the whole of the premises in controversy of O. S. Lincoln, for the sum of two hundred and forty-six dollars. On the 18th day of September, 1868, Anton Meyer and Constantina his wife, and Joseph Bobletter and Elizabeth his wife, mortgaged said premises to George Bohl to secure the sum of $850. On the 12th day of October, 1868, Anton Meyer, in consideration of about $900, conveyed his interest in the property in controversy which was an undivided one-half to his wife Constantina. Defendants claim that this $900 belonged to the minor heirs of John B. Meyer, deceased, and that the conveyance to Constantina, the guardian of said minors, was in trust to secure them for this money. On the 4th day of January, 1870, Anton and Constantina Meyer, executed a mortgage upon their interest in said premises to Louis Yog-ht, to secure the sum of $800.

At the February Term, 1872, of the Jones Circuit Court, this mortgage was foreclosed. At the sheriff's sale it was purchased by plaintiff, and was deeded to him by the sheriff, on the 5th day of September, 1872. Under this purchase plaintiff claims he acquired the other undivided half of the property, the portion deeded by Anton Meyer to his wife Constantina. The defendants, in opposition to this claim, insist that the consideration of the conveyance to Constantina was money of the minors, her wards, loaned by her as their guardian to her husband, that the deed to her was in trust to secure this sum, and that Voght, when he accepted the mortgage and plaintiff, when he purchased at the foreclosure sale had knowledge of this fact.

As to whether or not the consideration paid for the land belonged to the said minors, the evidence is conflicting. If we were left to determine it alone from the preponderance of the testimony submitted, we would probably find that the evidence did not establish the fact. But counsel have filed an agreement “that before the XDurchase of the premises by xdaintiff at sheriff "s sale, he had notice of the interest of the minor heirs in the property. We can construe this in no other light than as a recognition of the fact that the money with which the title was obtained was theirs, for there is no other way shown by the evidence, in which they could have any interest therein. The evidence also shows that Voght was informed, when'he took the mortgage, that the land belonged to the children. At the time, however, that this conveyance was made to Constantina Meyer in trust for the children, .the Bohl mortgage existed and was an incumbrance upon it to the extent of $800 and interest. The evidence clearly shows that all the money, except $50.00 received from Yoght, was applied in extinguishing the Bohl mortgage, thus inuring to the benefit of the minors.

It is but equitable therefore to hold that Yoght became subrogated to the rights of Bohl, to the extent of his mortgage'. See Gilbert v. Gilbert, 89 Iowa, 657.

Another fact is to be noticed. The evidence shows that on the 20th day of December, 1872, plaintiff agreed to quit claim an undivided one-half of the premises to the defendants. The court decreed that defendant take and hold the title and interest which plaintiff had on the 20 th day of December, 1872, in the premises. And the court could not have gone further than this, for that was all plaintiff agreed to convey.

The only interest, however, which plaintiff had in the premises, at that time, was what he acquired under the foreclosure of the Yoght mortgage. The Baumeyer interest was not conveyed to plaintiff until the 27th day of December, 1872. It is clear then, that whatever interest defendants acquired in virtue of them purchase from plaintiff, is burdened with the interests of the minors, whatever those interests may be, but that the minors have no claim which can be made available against the remaining interest of plaintiff acquired through Baumeyer. The court, therefore, did not err in holding-defendants hable for rent on an undivided half of the property, nor in dismissing the cross bill of the minors without prejudice.

Affirmed.