Sleeper v. Killion , 182 Iowa 245 ( 1917 )

Weaver, J.

1. Pleading : admissions : admission of legal conclusion: effect. — In October, 1899, Ellen A. Sleeper died testate, ’ seized in fee of the Iar,d which is the subject of this litigation. By the terms of her will, the testatrix devised a life estate in the land to her son, Guy A. Sleeper, with remainder over to his children. At the date of the death of the testatrix, her son, the life tenant, was the husband of Jennie A. Sleeper and the father of one .minor child, Helen P. Sleeper. Thereafter, there were born to him two other children, John James Sleeper and George A. Sleeper. Of the children named, John Janies died in April, 1902, and Helen P. in April, 1903. Both of the children were unmarried infants, and left their parents, Guy A. Sleeper and Jennie A. Sleeper, as their sole heirs. At the date of the death of the testatrix, the land in question was incumbered by a mortgage; and, in November, 1902, after the death of John James Sleeper and before the death of Helen P.' Sleeper, the mortgage debt not having been paid, a suit was brought to foreclose the lien. The petition in that proceeding named both the living children of the life tenant as defendants; but, as it now appears, they were not named in the original notice, and the record does not disclose the service upon them of any sufficient notice. A decree of foreclosure was entered against all the named defendants, including the life tenant, Guy A. Sleeper, and his wife. Under this decree, the land was sold at sheriff’s sale to one Voss, and, no redemption being made, he secured a sheriff’s deed. ’Later, and after the death of the two children John James and Helen P., their said parents, Guy A. Sleeper and wife, united in conveying the land by warranty deed to one Dixon. Whatever title was acquired by Voss under the sheriff’s deed, and the title conveyed by Guy A. Sleeper and wife to Dixon, have since been merged or united by proper conveyances in E. G. Killion, the defendant in this action. Guy A. Sleeper, the life tenant, died March 2, 1910, survived by his wife, Jennie A. Sleeper, and by George A. Sleeper, his only living child. Thereafter, Jennie A. Sleeper, widow of the life tenant, as guardian of the minor, George A. Sleeper, instituted this present action. Her claim is framed on the theory that, under the devise made in the will of Ellen A. Sleeper, the remainder over after the death of the life tenant vested alone in the child or children who might be living at his death; and, as her ward, George A. Sleeper, is the only person of that class, lie became and is vested with the entire title. His right in this respect, she says, is in no manner affected by the foreclosure of the mortgage, because he was not served with notice of the proceeding, and the decree as against him is void for want of jurisdiction. The petition prays that the title of the ward be confirmed and quieted as against the defendants, and that they be required to account for rents and profits. The answer of the defendants admitted in general terms the facts pleaded in the first four paragraphs of the petition, but denied all other allegations therein. It is further alleged affirmatively that the notice was served on the minor defendants in the foreclosure suit, that said defendants appeared and answered by guardian ad litem, and that the trial court found and adjudged the service sufficient; wherefore it is asserted that the right and interest of plaintiff’s ward were cut off by the sheriff’s sale and deed. By cross-petition, defendants set up the same alleged facts, and asked that the title of the defendant Killion be confirmed and quieted against the claims of the plaintiff and her ward. The trial court having found for the defendants upon the issues thus joined, the plaintiff appealed to this court, which held that there was no service of notice upon the minors in the foreclosure proceeding, and reversed the decree. Sleeper v. Killion, 166 Iowa 205. The cause having been remanded upon procedendo, defendants again appeared, and asked leave to amend their answer and cross-petition by alleging specifically that, at the death of the testatrix, Ellen A. Sleeper, her son, Guy A. Sleeper, the devisee of a life estate under her will, had but one child, Helen A. Sleeper, who thereupon became vested with the entire remainder; that thereafter, there were born to the life tenant two other children, John J. and George A., with the result that the remainder opened, .admitting said two later-born children to share therein on equal terms with Helen P.; that thereafter, and during the lifetime of their father, both Helen P. and John J. died intestate, leaving their parents, Guy A. Sleeper and Jennie A. Sleeper, their sole heirs; and that the title and interest so acquired by Guy A. Sleeper and Jennie A. Sleeper in the land was conveyed by their warranty deed to Dixon, and by mesne conveyances from him to the defendant Killion. In other words, the claim thus asserted is that, conceding the invalidity of the foreclosure proceedings as against the plaintiff’s ward, the extent of his title or interest in the land never exceeded a one-third share therein, and that the other two-thirds, which had been vested in Helen P. and John J., passed by inheritance upon their death to their parents, and thence by good and sufficient conveyances to the defendant; and because thereof the relief, if any, granted to plaintiff for her ward should be limited to the one-third part or share in the property. The trial court denied the motion for leave to amend the answer, and sustained plaintiff’s motion for a decree confirming the title of her ivard to the entire property, reserving, however, the matter of accounting for rents and profits and claims under the Occupying Claimant’s Act. From the decree thus entered, the defendants have appealed.

At a prior term of this court, an opinion was filed affirming that decree. Sleeper v. Killion, 157 N. W. 226. Thereafter, defendant’s petition for rehearing was sustained ; and the cause has been resubmitted, with additional arguments on the part of counsel for the respective parties.

On the original appeal from the decree in defendant’s favor, the attention of counsel and of the court was directed almost entirely to the. question of the jurisdiction of the trial court in the foreclosure proceedings to enter a decree of any kind against plaintiff’s ward, because of Avant of the notice required by laAv. The extent of the ward’s right in the premises in .case the decree of foreclosure was set aside as against him.had little and quite perfunctory consideration. The trial court, having found in favor of the validity of the foreclosure, had no occasion to pass upon or decide the further question concerning the nature or extent of the title or interest to which the ward would have become entitled, had the jurisdictional objection to the foreclosure been found good. Indeed, that phase of the controversy first arose for consideration only after this court, on plaintiff’s appeal, held the foreclosure decree void as against the plaintiff’s ward. As will be seen by reference to the opinion reversing the original decree, the one proposition on which the reversal was ordered is that the trial “court was without jurisdiction to enter the decree against plaintiff herein, in the original suit, and that such decree was void.” The order of reversal was general in form, and contained no specific direction or mandate as to the nature or extent of the relief to be awarded the plaintiff. Upon the restoration of the case to the docket of the trial court, that tribunal was bound, of course, to accept as final the ruling of this court that the foreclosure was void, and to proceed to enter a decree on that theory; but, in the absence of other specific direction, express or implied, it was within the province, and it was the duty, of that court to look to the record and to determine therefrom the nature and extent of the relief to which the plaintiff became entitled upon abrogation of the foreclosure. Such relief could not rightfully extend beyond the restoration to the ward of the property and property rights of which he had been erroneously deprived by such foreclosure. With the case in this situation, the defendant sought to amend his answer by specifically alleging facts showing that the ward’s title was limited lo a one-third part of the land in controversy. The refusal of leave to so amend, and the decree thereupon rendered in plaintiff’s favor, awarding the entire property to her.ward, give rise to the following pertinent inquiries; What interest did the plaintiff’s ward acquire in the property under the terms of his grandmother’s will? If it shall appear as a matter of law that he acquired no more than an undivided one third, is there anything in the record to prevent or estop the defendants from insisting that the title to be established in said ward’s favor by the court’s decree shall not exceed the share so indicated? Was any amendment to' the answer necessary to enable the defendants to insist upon their rights in that respect; and if necessary, should the leave asked for have been granted?

2. Wills : vested or contingent estates : postponing division : effect. I. The will of the grandmother provided in terms that the title to all her property should vest in her son, Guy A., for life, and then be “equally divided among his children;” but, in case of the death of Guy in the lifetime of the testatrix, then the entire estate should pass to his children immediately upon her death. It is the contention of plaintiff’s counsel that, under these provisions, the children of the life tenant acquired no vested right or interest in the land during his lifetime; and, as plaintiff’s ward was the only child who survived said life tenant, he succeeded to the undivided title and ownership. We are of the opinion, however, that the devise cannot properly be given such construction or effect. It is time that there is authority for the argument that, where there are no express words of gift, and the right of one claiming as devisee or legatee depends solely upon a direction to divide or pay at a date in the future, or upon the occurrence of some named event, there is no vesting of the gift until the date named, or until the happening of the event; but this rule has no application where the postponement is merely to let in some other interest, or permit the enjoyment of an intermediate life estate in another person. See Rood on Wills, Secs. 590, 591; Post v. Herbert, 27 E. J. Eq. 540, 544; Bryant v. Plummer, (Me.) 90 Atl. 171; Haviland v. Haviland, 130 Iowa 611; Archer v. Jacobs, 125 Iowa 467; Carr v. Smith, 49 N. Y. Supp. 351; Moore v. Lyons, 25 Wend. (N. Y.) 118, at 119; Doe v. Considine, 73 U. S. 458, at 476; Cropley v. Cooper, 86 U. S. 167, at 177.

The will before us makes no other disposition of the estate than to devise it to the son for life, and thereafter to his children. At that date, the son had but one living child, and the devise to his “children in equal shares” clearly indicates the intention of the testatrix to include after-born children in the benefits of the devise, and to treat all members of that class alike. The only reasonable conclusion to be drawn from the will is that the postponement of the time of division between the children was to let in the life estate created for their father; and under such circumstances, as we have already said, it is quite unanimously held that the children take a vested remainder from the date when the will became effective by the death of the testatrix. In the language of Mr. Justice Gray, in McArthur v. Scott, 113 U. S. 340:

“Words directing land to be conveyed to or divided among remaindermen after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment by the remaindermen, and not to the vesting of title in them. For instance, under the devise of an estate legal or equitable to the testator’s children for life, and to be divided upon or after their death among his children in fee, the grandchildren living at the death of the testator take a vested remainder at once, subject to open and let in after-born children; although the number of grandchildren who will take, and consequently the proportional share of each, cannot, of course, be ascertained until the termination of the particular estate by the death of the parents.”

3. Remainders : vested remainders : descent. The application of this rale to the case at bar is too clear to justify argument. The remaindermen under such a devise take as tenants in common, and not as joint tenants ; and, upon the deáth intestate of such a tenant in common, his vested interest passes to his heirs, under the statute governing the descent of intestate property. See Shafer v. Tereso, 133 Iowa 342; Moore v. Lyons, 25 Wend. (N. Y.) 119. None of the cases cited for the plaintiff suggest any rule inconsistent with our conclusion in this respect. The law in this respect is well settled; and the confusion, if there is any, in the adjudicated cases has arisen not so much from any disagreement upon questions of principle, as upon differing views of the facts calling for its application. The conclusion is, therefore, quite inevitable that plaintiff’s ward was vested with the remainder in the undivided one third of the land, and no more; and that, his parents (the heirs of his deceased cotenants in common in the remainder), having conveyed all their estate in the land to defendant’s grantor, the ward’s fee and right to enjoyment of the possession were limited to such fractional share.

4. Pleading : admissions : admission oí legal conclusion. 5. Pleading : admissions: admissions of fact: construction. II. We are next to consider whether there is anything in the record to deprive defendants of the right to object to the decree which establishes and confirms in plaintiff’s ward the ownership of the entire tract of land, instead of the fractional share thereof devised to him. The appellee urges that such an estoppel arises because of alleged admissions made in the original answer, and because that controversy was adjudicated and settled by the decision of this' court in reversing the decree which had been entered in defendant’s favor. The first four paragraphs of the petition in the original case contained, among others, an allegation that plaintiff was the only child of the life tenant surviving him, and as such was vested with the entire remainder. The defendant’s answer admitted the first four paragraphs of the petition, and set up the foreclosure proceedings, by which it was claimed that the ward’s title had been eliminated. Upon this latter issue (the validity of the foreclosure), as we have already seen, the case was made to turn in the trial court. In the opinion first filed by us on the present appeal, we adopted the view that the admission above referred to was sufficient to estop or prevent defendants from questioning the extent of the ward’s title or interest in the land, in the event of a finding in his favor that the foreclosure decree was void. Upon further reflection and further argument of counsel, we are convinced that we gave undue effect to this phase of the pleadings. Treating it as an adndssion of fact, it must be taken with all the qualifying clauses and limitations which the pleader has attached to it; and if, in connection therewith, facts are alleged which limit or qualify or nullify it, its effect as an admission is neutralized. 31 Cyc. 213. And the admission here relied upon by the appellee, when construed in the light of both petition and answer as a whole, amounts to no more than a concession, as a proposition of law, that plaintiff’s ward was a remainderman under the provisions of his grandmother’s will, and that, if his interest had not been eliminated by the foreclosure proceedings, he was entitled to a decree establishing and confirming it. The plaintiff was in court, pleading the will of Ellen A. Sleeper as the source of her ward’s title. The effect of such will and the nature and extent of the ward’s title thereunder were purely questions of law, and these it was for the court to decide. Uo admission in the answer could change the law. The defendants, while admitting the will, and making no denial of the ward’s interest thereunder, were insisting that such interest had been cut off by the foreclosure. Under sucli an issue, the ward, if successful in avoiding the foreclosure, could rightfully demand a confirmation of his title to no more of the property than was provided for him by the terms of the will on which the action in his behalf was based. Even where a petition is to be taken as true, it is only to the extent of admitting facts, and not the correctness' of the conclusions of law which the pleader attempts to draw therefrom. Twogood, A. J. & Co. v. Coopers & Clarice, 9 Iowa 415; Greer v. Latimer, (S. C.) 25 S. E. 136; Pinney v. Fridley, 9 Minn. 34; Spargur v. Romine, (Neb.) 57 N. W. 523; St. Joseph & St. L. R. Co. v. St. Louis, I. M. & I. Ry. Co., (Mo.) 36 S. W. 602; Mayor v. Swink, (Tenn.) 35 S. W. 554; Clark v. Missouri, K. & T. R. Co., (Mo.) 77 S. W. 882; The M. & I. S. R. Co. v. Hiams, 53 Iowa 501.

6. Appead and error : reversal: general order of effect. III. It follows from the conclusion reached in the foregoing paragraph that, had the trial court in the original case found against the validity of the foreclosure, there was nothing in the pleadings or record which would have precluded the defendant from insisting that the relief granted to plaintiff for the benefit of her ward should be limited to the undivided interest which he acquired by virtue of the will of Ellen A. Sleeper. Why, then, may not appellaiits insist upon the same proposition when the case comes up for decree after the remand from this court? Had that question been presented to and decided by this court on the former appeal, then, of course, the trial court would have been bound to respect that decision. But such is not the record. That question was not considered or decided by the trial court in that case; because, as already pointed out, having concluded that the foreclosure was valid, there was no occasion to go further, and consider the nature or extent of the ward’s interest under the will. On appeal, this court used some expressions which, standing alone, would suggest an assumption that the wayd was the sole remainder-man; but a reading of the opinion as a whole, in the light of the undisputed record, makes it very ..clear that the court .did not consider or decide the question whether the ward’s ownership was entire or otherwise. In ordering the reversal, it did not render or direct final judgment, and, in the very nature of the case ’ ' an(j issnes joined, it could not have done so. The rule in such cases has been stated to be that a general and unqualified reversal of a judgment or decree, without other order or direction, nullifies it completely, and leaves the case standing as if such judgment or decree bad never been entered. 4 C. J. 1204; Seevers v. Cleveland Coal Co., 179 Iowa 235; Dinsmoor v. Rowse, (Ill.) 71 N. E. 1003; Ure v. Ure, 223 Ill. 454. The original decree having been reversed without directions, upon the sole ground that the decree of foreclosure was void as against plaintiff’s ward, it was open to the parties, or either of them, granting the finality of such ruling, to ask the trial court to proceed and enter such decree as equity might require upon the proved facts. To permit this, no amendment of the pleadings was necessary. The plaintiff was the moving party, and had the burden of proving the alleged title of her ward. This she did, or attempted to do, by evidence of the will of Ellen A. Sleeper and the decease of the life tenant and of all his children except plaintiff’s ward. The legal effect of this proof was, as we have said, to establish the ward’s right and title to one third of the land, and to negative conclusively his claim as to the other two thirds. The decree of foreclosure was not set aside as against the life tenant and his wife; and, by virtue thereof, as well as by their deed of conveyance, the defendant Killion had acquired unquestionable’title to all of the land except the one third vested in the ward. To have the advantage of these facts and to have their rights preserved in tbe decree to be entered, no amendment of tbe pleadings was necessary.

7. Pleadinq ammendments: equity causes ammendments after revesal. -Beaching this conclusion, we need take no discuss or define the extent of the right of amendment after reversal of a decree in an equity case. It is undoubtedly true, as we said upon the former hearing, that a party against whom a reversal has been ordered, cannot be permitted to shift his ground, and by new pleading avoid the effect of the decision against him; but that cases may, and often do, arise where amendment is permissible, is well settled. For example, see Hogle v. Smith, 136 Iowa 32, 35; Adams County v. The B. & M. R. R. Co., 55 Iowa 94; Code Section 3600; Dinsmoor v. Bowse, 211 Ill. 317; Chickering v. Failes, 29 Ill. 294; Sowerwine v. Central Irr. Dist., (Neb.) 136 N. W. 44; State ex rel. v. District Court of Ramsey County, 91 Minn. 161; Steere v. Gingery, (S. D.) 123 N. W. 863; Schmitt v. Weber, 233 Ill. 377; Fleming v. Reddick, 5 Gratt. (Va.) 272; Wisconsin Marine & Fire Ins. Co. v. Mann, (Wis.) 76 N. W. 780; Troup v. Horbach, (Neb.) 78 N. W. 286; Jones v. Clark and Clark, 31 Iowa 497; Pinkham v. Pinkham, (Neb.) 83 N. W. 837; Heating & Lighting Co. v. Stevens, 20 Utah 241; Heine v. Rohner, 53 N. Y. Supp. 464; Wyman v. Jensen, 26 Mont. 227.

Of course, neither by amendment nor otherwise could defendant be allowed to reopen the one question which was decided upon the first appeal: the invalidity of the foreclosure proceedings as against the plaintiff’s ward.

The foregoing conclusions require a reversal of the decree below, and a remand of the case to the district court for the entry of a decree in harmony with this opinion and for the determination of such further questions as may arise concerning the terms upon which plaintiff may exercise her rights of. redemption, as -well as upon the matter of rents and profits, and the claims, if any, under the Occupying Claimant’s Act. — Reversed, and remanded.

Gaynor, C. J., Preston and Stevens, JJ., concur.