Citation Numbers： 211 N.W. 488, 202 Iowa 1094
Judges： Mobbing, Stevens, Albert, De Graff, Faville, Vermilion, Evans
Filed Date： 12/16/1926
Status： Precedential
Modified Date： 11/9/2024
The property in controversy is the quarter block at the southwest corner of Seventh and Walnut Streets in the city of Des Moines, known as the Masonic Temple block, and described as Lots 7 and 8 in Block 2. The ground was leased by William McClelland to the Masonic Temple Association for 20 years from September 1, 1883. Under this lease, the Masonic Temple Association in 1883 erected on the leased ground a building, which, with additions, is still standing. On October 14, 1902, a new lease for the term of 50 years, commencing on the first day of September, 1903, was entered into, by which the association agreed to pay yearly for the first 10 years $4,000, besides taxes and special assessments. The lease further provided :
“At the commencement of the second 10 years of this lease, and at the commencement of each 10 years thereafter, the ground, exclusive of the buildings or improvements, is to be appraised by disinterested appraisers, who shall be citizens and owners of real estate in the city of Des Moines. • The appraisement to be under oath and signed by the parties * * * The appraisers shall be selected, one by the said party of the first part, and one by the party of the second part, and if the two thus selected cannot agree * * * the said two appraisers to select a third appraiser, and as rent for the second term of 10 years * * * (provided a purchase by either of the parties hereto'shall not be made as hereinafter provided) the said party
“The heirs or assigns of said McClelland to have the right first to purchase the buildings and improvements. It being understood that during the lifetime of said McClelland, the said party of the second part does not have the right to purchase said ground. In case the said heirs or assigns of the said McClelland shall not elect to purchase said buildings and improvements at such appraised price and the said party of tEe second part does not elect to purchase said ground in accordance with the stipulations hereinbefore made, then the said party of the second part shall pay as rent for the said ground for the period -of 10 years thereafter the sum of four (4) per cent of the appraised value of said ground annually and all taxes, and assessments,
“At the expiration of the term of 50 years first herein mentioned, if the heirs or assigns of said McClelland should not elect to purchase the buildings and improvements as hereinbe-fore provided, then the said party of the second part shall have the right of purchase of the ground as hereinbefore provided, and in case the said party of the second part does not elect to purchase said ground in accordance with the stipulations here-inbefore made, then this lease shall be extended for another term of 10 years from that date and the said party of the second part shall pay as rent therefor the sum of four (4) per cent of the appraised value of said ground annually, and all taxes and assessments, the rent to be paid quarterly in advance as herein-before stated, and at the end of each 10 years, the same appraisement to be made in the same manner and each party to have the right and options as above and hereinbefore provided for, until said buildings and improvements are purchased by said heirs or assigns of said McClelland, or said ground shall be purchased by the said party of the second part. * * * ”
The lease provided for re-entry on six months’ default, and that it should take the place of the first lease. The lease, together with all of the interest of the Masonic Temple Association in the buildings and improvements, was assigned by the association on November 2, 1908, to the defendant Young Realty Company, which assumed the payment of the rent from December 1, 1908.
The trust in question was created by the will of William Mc-Clelland. He died December 4, 1907, unmarried, leaving a will dated May 4, 1897. This will appointed the defendant Simon Casady as executor, and directed that the lots in question, “and other real property that I may own at my death then under lease, and the rents arising therefrom after payment of all taxes and assessments thereon and any debts that I may owe at my death, shall, at my death, be held by my executor hereinafter
“For my brother, Nathaniel McClelland, one-third (1/3) interest therein.
“For my brother, Charles McClelland, one-third (1/3) interest therein, and
“For my brother, Henry McClelland, one-third (1/3) interest therein, and
“Whereas, Lots seven (7) and eight (8), in Block two (2) aforesaid are now under lease to the Masonic Building Association and said lease may be further extended or modified during my lifetime.
“Now, therefore, my executor shall retain title to said lots and any other property owned by me under lease at my death, in trust, as aforesaid, and collect and pay over the net income thereof semiannually to the persons, above named in this clause of this will, one-third part to each until said lease shall be terminated, unless the legatees herein named (or in case of their death or of the death of either of them, then their heirs) shall each and all freely and mutually petition the executor named in this will or Ms successor to sell said property subject to the lease. In case they shall - so petition and desire the sale of said property subject to the lease thereon, then my executor shall sell said premises subject to said lease and distribute the net proceeds thereof as above directed, to wit: one:-third (1/3) part to my brother Henry McClelland, and one-third (1/3) part to my brother Nathaniel McClelland, and one-third part (1/3) to my brother Charles McClelland. In case no sale shall be made of said premises as above indicated during the existence of "the leases thereon, then at the termination of said lease or leases, said premises shall be sold by my executor for the best price obtainable, and the net proceeds arising therefrom shall be paid over to the above named parties in the proportions specified. If either of the above named beneficiaries should not survive me, then I will and direct that his lawful heir or heirs shall take his share, as the case may be, in the same manner as if named in this will. ’ ’ Charles McClelland predeceased the testator, leaving nine children, of whom eight, in the years 1908 to 1910, conveyed their respective undivided one-twenty-seventh (l/27th) interests in the lots to defendant Lafayette Young, Sr. The deeds ex
The other two brothers died after the testator, leaving a number of- children and grandchildren. In 1917 and 1922, interests derived through these brothers were conveyed to L. Young, Sr., under similar deeds, and one interest, was contracted' to L. Young, Jr. By means of these, L. Young, Sr., and L. Young, Jr., acquired 482/1,080ths. . On July 27, 1923, all. ol.the. remaining, beneficial interests, including the. interest of the vendor in the contract with L. Young, Jr., were conveyed to plaintiff. Plaintiff and the defendants L. Young, Sr., and L. Young, Jr., are now the owners of the entire beneficial, interests in the. ground and landlord’s rights under the lease. On July 30, 1923, plaintiff notified Mr. Casady that he had acquired the 598/1,080ths from the McClelland heirs, naming them, and that L. Young, Sr.-, and L. Young, Jr.,.had acquired the 482/l,080ths interest;, that the conveyance to - the Youngs and to him terminated .the trust. Plaintiff demanded a conveyance of the 598/1,080ths interest, and stated that Mr. Casady’s participation in the selection of appraisers, so far as concerned plaintiff, was terminated. An executor’s deed was tendered for execution. Afterward, Mr. Casady and L. Young, Jr., representing all the Young interests,had conferences, in one of which the Youngs’ attorney delivered to Casady his opinion to the effect that the trust was to run for the period of the lease, unless sooner terminated by .the. court, and that until then it was the duty of the trustee to name the appraiser for the lessor. Mr. Casady named to L. Young, Jr.,-a number of. possible appraisers, to whom Mr. Young made no objection. On August 5, 1923, Mr. Casady, without any consultation with plaintiff, and withorrt plaintiff’s knowledge, appointed George B. Hippee to act as appraiser for Casady as trustee. The Youngs nominated McGutehen as appraiser for the lessee.
On August 7, 1923, Casady notified plaintiff and the Youngs that he had designated Hippee as appraiser, to- act with-Mc-Cutchen, and that they had appraised the lots at $625,000 .and the buildings at $150,000. Plaintiff at once repudiated the appraisement, so notifying Casady and the Youngs.
I. Plaintiff’s-contention is that, by the conveyances of all
The testator had neither wife nor descendants. His prospective heirs were three brothers, with families of considerable size. The property was one both valuable and growing in value, and incapable of division in kind. The buildings did not belong to him. The property at the date of the will was under a 20-year lease, containing provisions for appraisements and extensions, and provisions having particular reference to the rights of the testator’s heirs at the expiration of the 20 years if he should not then be living. The terms of the lease' and the will and the circumstances were such that new arrangements between the parties to the lease were undoubtedly in the contemplation of the testator. The new lease was made some five years after the will was executed, and it likewise contained special provisions applicable to testator’s heirs. The testator made no change in his will after executing the new lease. Under either lease, one of the important questions that would confront the beneficiaries would be whether the income from the property and its prospective rise in value would be more advantageous than the proceeds on its sale. There was at least a possibility that there would be differences of opinion among so many owners, on this question as well as on the appointment of appraiser. Some of the beneficial interests might fall to minors. There is nothing to indicate that the testator had in mind the interests of anyone but his brothers, and their families, in case of their death. There is nothing to suggest any solicitude for the interests of the lessees or their assignees. No reason is suggested why he should construct a trust for them. The will contains no prohibition or limitation on the right of the beneficiaries to sell their interests. TIence they had the right to assign. Merchants’ L. & Tr. Co. v. Patterson, 308 Ill. 519 (139 N. E. 912); Boston Safe Deposit & Tr. Co. v. Luke, 220 Mass. 484 (108 N. E. 64).
“In the consideration of a court o'f equity, the cestui que
The trust created was not a'spendthrift trust. Hall’s Estate, 248 Pa. St. 218 (93 Atl. 944); Houghton v. Tiffany, 116 Md. 655 (82 Atl. 831) ; Winslow v. Rutherford, 59 Ore. 124 (114 Pac. 930). It is not claimed that the equitable interests did-not vest from-the date of testator’s death. The will- expressly give.s to the brothers, or, in ease of their death, to their heirs, the right to have the property sold and the proceeds distributed. If-the formula provided by the will .to this end had been followed, it would not be questioned that the "trust was at an end. We think that the purpose of the-testator was to enable any one of the “legatees or in the case of their death * * * their heirs” to retain the right to his portion of the income against the desire; of others to sell the corpus. The will reads, “in case.they shall so petition and desire the sale, ’ ’ then the executor shall sell.'
II. The trustee is resisting suit for termination of the trust. The petition sets up the conveyances to plaintiff and to the defendants Young, and the trustee’s answer denies knowledge or information of these allegations sufficient to form a belief. In substance, the trustee unites with some of the equitable owners or beneficiaries in defending against the claims of the others. The district court allowed the trustee $2,000, “as compensation for counsel employed to defend this action, ’ ’ and directed him to withhold that sum from funds coming into his hands by virtue of the trust. The trustee does not claim that anyone is beneficially interested in the trust, other than the parties to the action, or that any of them are laboring under any disability. L. Young, Jr., testifies that Mr. Casady “asked my advice about having legal opinion, and I told him I would be very glad to get' him one.” It was after this that Mr. Young and his attorney called on Mr. Casady and gave him the opinion previously referred to. He also testifies that he regarded Mr. Hippee as the appraiser chosen on behalf of the beneficial owners, and their representative and advocate, and Mr. McCutehen as the representative and advocate of the Young Realty Company. In 1909,
What the opinions were, does not appear, but, at that time, only part of the beneficiaries had conveyed. Mr. Young, as assignee of some, had rights under the will and lease equivalent with those who had not assigned. The trust was still active. Mr. Casady testifies to having been informed of the substance of the opinions by L. Young, Jr., “quite a number of years” before the trial. Mr. McCutchen testifies to “Mr. Young’s saying something to me about them being interested on both sides of the deal, and being able to a certain extent to govern the selection of the appraisers on both sides.” This was before McCutchen was appointed appraiser. In negotiations between plaintiff and the Youngs, the Youngs expressed their adherence to the appraisement, and that the trust should continue in force, and they were not asking for its termination. In the trustee’s argument it is said:
“It" is perfectly true that the will of William McClelland does not purport to create the trust for any grantee of any heir or beneficiary, and that it does not express or imply any restraint against the alienation by the beneficiaries. Because of these facts, the plaintiff contends that the conveyances by the beneficiaries to the plaintiff and the defendants Young terminated the trust.”
Also:
“The trustee [testator?] could not prevent the sale of any particular interest, but he could prevent the sale of the property by creating the trust, and this is exactly what he did. The heirs did not sell the legal title. They only sold their beneficial interest. When the trustee sells the legal title and distributes the proceeds between the plaintiff and the defendants. Young, this will terminate the trust,- and the beneficiaries will derive
Mr. Ciasady stands here, therefore, admitting that the other parties to the action (Fleming, L. Young, Sri, and L. Young, Jr.) are now the only ones interested in the trust, and that their united consent to a sale by him, and the. sale and distribution of the proceeds among them, would terminate the trust. No collusion to wrongfully terminate the trust is suggested. On this record, he had no standing to dispute the plaintiff’s application. Eakle v. Igram, 142 Cal. 15 (75 Pac. 566); Sears v. Choate, 146 Mass. 395 (15 N. E. 786); Slater v. Hurlbut, 146 Mass. 308 (15 N. E. 790) ; Coram v. Davis, 39 Mont. 495 (104 Pac. 518).
A trustee has no authority to employ counsel at the expense of the estate to represent the interest of one beneficiary, in hostility to that of another. To permit him to do so would be to allow the trustee to pay from the property of one litigant the counsel fees of his opponent. Stull v. Harvey, 112 Va. 816 (72 S. E. 701) ; Taylor v. Denny, 118 Md. 124 (84 Atl. 369). The trustee has not pleaded, nor has he offered any evidence, that the beneficiaries are indebted to him, though he does testify that he has'received no compensation for his services since he ceased to act as executor. He does not show what services he rendered or what they were worth. He testifies that he thought the estate had been closed in 1913.
“I assumed I had been discharged long ago * * * As far as I am concerned, thought the estate had been closed for many years. ’ ’
On July 18, 1923, he made a report that there was no money in his hands as executor, and ashed for an order for his discharge, but continuing him as trustee. He says that this application was brought to him by Mr. Henry, “to make the
III. Plaintiff claims that he is entitled to make contribution toward the value of the buildings in proportion 'to his interest in the ground, and on offering that, has the rights of a ' tenant in common in the buildings, as well as in the ground. He claims that the lease is merged. His proposition in support of this claim is that the individual Youngs and the Young Realty Company are, in substance and identity, the same; that the realty company is merely a form of organization under which the individual Youngs are doing business, and which should be disregarded; that, when the-lease was assigned to the Young Realty Company, Young was already a cotenant in the reversion; that, therefore, the Youngs individually should be held to be, in substance, the owners not only of their undivided interest in the land, but of the lease and buildings. On these premises, plaintiff argues that he, as a tenant in common, is entitled to the advantage of their acquisition of the lease, to the extent of his proportionate share.
L. Young; Sr., in Cavanaugh’s name, acquired the interest of one of the McClellands on October 14, 1908. Ón October 29, 1908, the Young Realty Company was organized. On November 2, 1908, the lease was assigned by the original lessee to the Young Realty Company.
We may assume that the corporation was organized for the purpose of taking over and holding the lease. The incor-porators were L. Young, Sr., Harold Young, and L. Young, Jr. One half of the stock is common, and was issued originally to L. Young, Sr. Five shares were transferred to Harold Young, and five to L. Young, Jr. The evidence is that the company "now has and always has had $45,000 authorized common stock and $45,000 authorized preferred stock.”
“Q. How much stock do you [L. Young, Sr.',] hold in the Young Realty Company, and how was it paid for, and when? A. 440 shares of common stock; 82 shares of preferred stock. All of this stock was purchased by me for cash, at the
No dates of transfers are given. The articles of incorporation provide that the holders of the common stock may vote, and the holders of the preferred stock may not vote, so long as the corporation is not in default in dividends, except that they may vote on the question of mortgaging the property. The preference given is the usual one. More than 300 shares of the preferred stock are in the names of others than the defendants Young.
The holders of the preferred stock are co-owners, and not creditors of the corporation. Their status as existing stockholders is not destroyed because their stock may be retired or because they have no voting power. 14 Corpus Juris 417, 418; Wright v. Johnston, 183 Iowa 807; Spencer v. Smith, 120 C. C. A. 75 (201 Fed. 647); Kinston Cotton Mills v. Wachovia Bank & Tr. Co., 185 N. C. 7 (115 S. E. 883, 29 A. L. R. 251). In Fleming v. Fleming, 194 Iowa 71, the associates, whether they were partners or a corporation, were identically the same persons. In Keokuk Elec. R. & P. Co. v. Weisman, 146 Iowa 679, 687, the individual was the owner of the company and the beneficial owner of the property. In these and similar cases cited by plaintiff, the legal fiction of separate corporate organization was disregarded. In this case, the separate corporate organization, when it acquired the lease, is not shown to have been a fiction, or to have been identical in ownership and interest with L. Young, Sr., and L. Young, Jr. Presumptively, the corporation is a distinct entity.
Nor do we think that the purchase of the lease and the buildings, if it had been made by L. Young, Sr., individually, while he was a tenant in common with the McClelland heirs, would entitle the plaintiff, on offering contri- . . button, to share m t-he benefits of it. We pass the questions whether plaintiff succeeded to the rights of his grantors in this connection, or whether they or plaintiff waived any rights that they might have had, or whether the plaintiff has elected an inconsistent remedy. There was no duty resting on any of the cotenants to procure a discharge or termination of the lease. Neither of
‘ ‘ This principle arises from the privity, subsisting between parties. having a common possession of the same land, and a common interest in the safety of the possession of each; and it only inculcates that good faith which seems appropriate to their relative position.”
Here, the estate for years -of the lessee and the fee, in the -lessors were distinct, separately owned, and held under contract between them. The acquisition of the lease by one eo-. owner of the reversion.could not operate to oust, threaten, or undermine the estate of the other .co-owners. No advantage by breach of trust or confidence would result from the purchase of the lease by one of them. See, further, Weare v. Van Meter, 42 Iowa 128; Tan Horne v. Fonda, 5 Johns. Ch. 389; Mitchell v. Reed, 61 N. Y. 123; Cooper v. Edwards, 152 La. 23 (92 So. 721). There was no express intention of merging the term for years or any part of it in the equitable fee. We think no such intention can, under the facts of this, case, be implied. Sweet v. Henry, 175 N. Y. 268 (67 N. E. 574); 2,Pomeroy’s Equity Jurisprudence (4th Ed.), Section 788. We are of the. opinion that the plaintiff is not entitled to make contribution
The rights of the'holder of the leasehold and the owners of the reversion, as between themselves, remain to be considered. Plaintiff and defendants L. Young, Sr., and L. Young, Jr., hold in common a lessor’s rights under the lease. One of these rights is to purchase the buildings within 90 days after the expiration of the 20-year period. It is the fault of the defendants, and not of the plaintiff, that a lawful appraisement was not made, and, as will be seen, a proper appraisement was not made, by the court below. The 90 days, therefore, will date from the entry of final decree pursuant to this opinion. The option given by the lease is not to purchase an undivided interest in the buildings and improvements. Hence, the realty company is not required to convey to plaintiff a proportionate interest. If it be conceded, without being decided, that, if the option were merely to purchase the building, and that, as between the owners in common, one of them might have the right of exercising the option if the others did not elect kv join with him and would not be prejudiced, still more is involved here than merely the exercise of an option to purchase the building. Such purchase would operate to terminate the lease and the duty of the lessee to pay rent. One of the owners of the ground might prefer to purchase the building and terminate the lease, and another might prefer to continue the lease and receive the income provided by it. The exercise of the option is an affirmative act, and in the absence of its exercise, the lease continues in effect. We think that one cotenant has not the right to determine that affirmative act without the consent of the others, and thereby terminate the lease and renounce all right to its continuance and the continued duty of the tenant to pay rent. No claim for a partition is made. If the owners of the ground do not exercise the option given them, then the realty company will have, after the expiration of that right, the 90 days provided for by the lease to purchase the ground. The rent will' be computed and paid from September 1, 1923, on the valuation fixed in this opinion until the termination of the lease under the options, if exercised, and if not exercised, then until the next appraisement. The decree will be without prejudice to
IV. The valuations of the trial court are before us for review. It should be stated that no misconduct in the appraisement, or actual bias, appears. The evidence is voluminous, and to set it out or to attempt to summarize it would serve no useful purpose. We are of the opinion that the valuation of the ground should be fixed at $700,000, and of the building at $150,000.
Suggestion of the death of Lafayette Young, Sr., has been made, and the administrator or executor of his estate will be substituted.
One half of the costs in this court will be taxed to the plaintiff, and one half to the defendants Young Realty Company, Lafayette Young, Jr., and the administrator or executor of the estate of Lafayette Young, Sr.
The decree is in part affirmed, and in part reversed. — -Affirmed in part; reversed in part.