Citation Numbers: 184 Iowa 391
Judges: Evans, Ladd, Preston, Salinger
Filed Date: 9/30/1918
Status: Precedential
Modified Date: 7/24/2022
A demurrer to this answer was overruled, and, as plaintiffs elected to stand on the ruling, the court entered a decree defining shares of the several parties in the respective properties, describing each, and with this additional:
' “The court further finds that the said Margaret Dalton is entitled to have Lot No. 3, Block 99, in the Seventh Addition to the city of Le Mars,. Iowa, set apart to her as a part of her share in the said estate. It is now therefore ordered, adjudged, and decreed by the court that the titles of the said parties in and to the said premises be and the same are hereby established and confirmed in them, and that the said premises are partitioned by a sale thereof; that Molyneux & Maher, attorneys for the plaintiffs, be allowed the statutory fees, which, with other costs, including the mortgages of record, shall be a lien upon the several interests in proportion to their-interests; and W. L.*393 Gund is appointed as sole referee to make a sale of said premises at either public or private sale, and is hereby authorized to pay the mortgage against the farm which is located in Cherokee County, and to pay into the hands of the clerk of the district court the amount of the mortgage encumbrance against the homestead, and to divide the balance realized to the several owners in proportion to their separate and distinct shares. It is further ordered that the said premises be appraised before the sale by James Collins, James Crangle, and Thomas E. Herbert, who are hereby appointed appraisers; and the referee is directed, before making the sale, to execute a bond in the sum of $70,000, the same to be approved by the clerk of the district court.”
The appraisers qualified, and, after fixing the value of the farm, appraised the house and lot at $4,100. The referee duly advertised and subsequently sold at public auction the several tracts, including the house and lot in Le Mars, the latter being bid in by the widow at $3,888. The court confirmed this sale as reported by the referee, and in so doing expressly found “that it is the reasonable value of said premises, and that it is desirable to complete the said sale.” A deed was executed accordingly, with the approval of the court. Plaintiffs appealed from the ruling on the demurrer, and the order thereon was affirmed in Dalton v. Dalton, 178 Iowa 508. Thereafter, on January 8, 1917, the children, other than Helen, filed a supplemental petition, reciting the foregoing facts and, in addition thereto, alleging that “the widow, Margaret Dalton, appeared [at the sale on March 2, 1916], and asked that Lot 3 [the homestead] be sold to the highest bidder at public sale on said date;” and that the sale was at her instance; and that, owing to such facts:
“The defendant Margaret Dalton is not entitled to the relief demanded in the prayer of. her answer, as filed on the 7th day of September, 1915, in that she did not take the*394 property described as Lot 3 in Block 90, in the Seventh Addition to Le Mars, Iowa, as the widow of the said James Dalton, deceased, but took it as a purchaser at public sale, and therefore is not entitled to have the said mortgage,' amounting to the sum of $2,000, paid as a general debt of the estate, or by the two-thirds interest in the estate; that the said Margaret Dalton did not take the title to Lot 3 in Block 90 as the surviving spouse, or because it was the homestead of the deceased, but purchased the same at public sale; that, when said Margaret Dalton elected to become a bidder on said property, and finally purchased the same at public sale, as described, she waived any and all right she might have had to compel the two-thirds interest to pay the said mortgage out of their share of the estate, or any right she may have had to take the homestead free from the debt of the said mortgage; and because of the facts and occurrences which occurred subsequent to the filing of the answer of the defendant Margaret Dalton, and the submission of the demurrer, the defendant is not .entitled to the relief prayed for in her answer, and it would.be unfair and inequitable to compel the heirs holding a two-thirds interest in the said estate to pay the mortgage against the said property after the widow had waived any right that she might have had to compel the payment thereof by purchasing the identical property at public sale, and which said property was offered for sale on the said date because of the request made by her personally and by her, through her attorney, and after she had been informed that she would waive any and all right which she might have to compel the payment of the mortgage if she became a purchaser.”
The prayer was that the referee be directed to charge the $3,888 bid for the house and lot to the distributive share of the widow, and that the mortgage of $2,000 be paid from the funds of the estate. The answer of the widow contains little else than a restatement of the record as recited; and
“It is now, therefore, ordered, adjudicated, and decreed by the court, that the titles of the said parties in and to said premises be and the same are hereby established and*396 confirmed in them, and that the said premises are partitioned by a sale thereof.”
Plainly enough, this establishes the title to their respective shares, and orders partition by sale; but not of that already set apart to the widow. The decree must be construed in its entirety; and it would be absurd to declare the widow’s right to the homestead as such, and, immediately following, order its sale. Section 3367 of the Code provides:
“The distributive share of the survivor shall be set off so as to include the ordinary dwelling house given by law to the homestead, or so much thereof as will be equal to the share allotted to her by the last section, unless she prefers a different arrangement; but no such arrangement shall be permitted unless there be sufficient property remaining to pay the debts of the decedents.”