Kinkead v. Peet , 153 Iowa 199 ( 1911 )

Evans, J.

(dissenting). — I feel compelled to dissent from the majority opinion. So far as fact questions are concerned, there is much diversity and exaggeration in the evidence. I am impressed that the majority is unduly liberal toward the plaintiff in the allowances made in his favor. In view of the conflicting state of the evidence, I would not be willing to dissent from my brothers on that ground.' There are, however, two or three definite points wherein the majority opinion in my judgment fails to administer equity to the defendant.

I. I can see no reason, legal or equitable, why the defendant should not be allowed the full amount paid by him to the plaintiff’s wife, including the interest thereon. Defendant, Peet, obtained his deed of the farm in the fall of 1904, and obtained, possession of the farm thereunder in March, 1905. At the time he obtained his deed, the plaintiff Kinkead’s wife was prosecuting an action for divorce against him, and had caused a writ of attachment to be levied upon his property. It had been orally agreed between Kinkead and his wife that her alimony should be $3,000. On March 14, 1905, she brought an action against Peet to recover $3,000. She alleged that Peet had orally agreed with her to pay the same in consideration of her signing the deed and releasing the attachment. Peet denied then, and denies now, that he ever made such an ‘ agreement with Mrs. Kinkead. In the trial of such action the evidence was such as to have warranted a verdict by the jury for either party. The verdict was for the plaintiff, and the final outcome of the litigation was that Peet was compelled to pay $3,000 with interest from March, 1905, amounting to $3,511, not including any costs or expense of trial. Kinkead aided his wife in the recovery of the judgment against Peet, although he did not testify that Peet had agreed with him to pay the same, nor was ho present at the alleged conversation with the wife. There is no room to claim that Peet acted in bad faith in defending against the suit of Mrs. Kinkead. Nor was the plaintiff, Kinkead, prejudiced in any manner by such defense. If the defense had been successful, it would have operated in his favor. The fact that Peet was compelled to pay this amount in order to get the property is the basis of his claim against Kinkead for the amount so paid out. Peet was held liable for the money as of March 1, 1905. The liability of defendant to him was presumptively commensurate with his liability to Mrs. Kinkead. Kinkead was not hurt by the delay in payment to Mrs. Kinkead. His liability was in no sense enlarged thereby. According to the majority opinion, his liability was substantially decreased thereby, and I am constrained to disagree with the holding at this point. There is another fact to be borne in mind. Since that litigation it has been adjudged that plaintiff’s deed was intended as a mortgage. In prosecuting that litigation plaintiff, Kinkead, testified that the deed was intended to secure, not only existing indebtedness, but also money to be paid out by Peet in the future, and this included even alleged wages to be paid to Kinkead himself. He testified: "Everything. he paid out was to be paid back. Of course, I was to pay interest on the amount of the indebtedness.” Kinkead also testified that he requested or authorized Peet to pay the $3,000 to his wife, and that Peet did not agree to do so. This was prior to the time of the alleged oral agreement between Peet and Mrs. Kinkead as testified to by her. So that, according to the plaintiff’s own contention, the title' to the farm was to be held as security for such money as might in the' future, be paid out by Peet for the benefit of Kinkead. Such an arrangement impliedly included interest as well as principal.

II. When Peet took possession of the farm, the buildings thereon were in a dilapidated condition and in -urgent need of repair. Such repairs were made by Peet. The principal repair consisted in putting in a cement floor in a cow barn in lieu of an old plank floor which had completely rotted away. The actual expense of such repairs amounted to a few hundred dollars. These are disposed of in the majority opinion by offsetting them against alleged waste. I do not think this record would justify any allowance whatever to the plaintiff for alleged waste. Indeed, one of the claims of waste is that there were not sufficient repairs made. I think the defendant should be allowed his reasonable expenditure for the repairs shown.

III. The defendant caused about 1,100 rods of tiling to be put upon the premises at an expense of $400 or $500. This tiling was highly beneficial, and rendered tillable a portion of the ground the úse of which was of no value whatever prior thereto. This claim is disallowed by the majority on the theory that it involved an improvement rather than a repair. The line between repairs and improvement is not always easily drawn. In view of Kinkead’s own showing, “that everything he paid out was to be paid back,” we are not called upon to draw the line in the present instance. The rental value of the farm has been charged to the defendant in its actual condition, and this includes tile.

It seems to me inequitable to permit the plaintiff to take the land without repaying the expenditure for this marked benefit.