Hetch v. Eherke

Robinson, J. The defendants are Albert Eherke, ■and Rosanna, his wife, and Jacob Eherke, their son. In February, 1879, the circuit court of Cedar county [758] ^rendered a decree in a foreclosure proceeding against the defendants-Albert and Rosanna Eherke in favor of the plaintiff for the recovery of a specified sum of .money, and for the sale of the premises mortgaged to .secure its payment. After exhausting the mortgaged property, there remained due on the decree more than .six hundred dollars. A few years later the defendants .removed from Cedar to' Crawford county, and in the year 1887 the mother and son entered into, an agreement in writing for the purchase of a quarter section of land in the county last named. In May, 1888, a deed for the land was delivered to them, and they gave in return a ¡mortgage to secure the unpaid portion of the purchase jprice. '.The apparent effect of this deed was to vest in (each grantee the title to an undivided half of the land, subject to the mortgage. All the payments secured by the mortgage have been made excepting one of less •than five hundred dollars. In February, 1892, an execution was issued on the decree, and sent to the sheriff of Crawford county, who. levied it upon the interest of Albert and Rosanna Eherke in the land which had been purchased as stated, and a transcript of the decree was filed in that county. This action was brought to subject the property to the levy thus made, and for general equitable relief. The plaintiff claims that the land was paid for by the father and mother, and that it is really owned by them, and that the title to an undivided one-half thereof was taken in the name of the son for the purpose of hindering, delaying, and defrauding the creditors of the father; that the father is insolvent; that the portion of the land which appears to belong to the mother is not sufficient to satisfy the execution, and that she has no other property from which it may be satisfied. The defendants deny that either Albert or Rosanna Eherke -has any interest in the land subject to execution, and claim that the legal title to an-undivided ,one-half of .the land was vested in Rosanna [759] 'Eherke only to secure the performance by Jacob Eherke ■of an agreement he had made to support her and her ‘husband during their natural lives. The defendants •also aver that the plaintiff’s right of action is barred ‘by the statute of limitations. Although there is much .conflict in the evidence, we are of the opinion that a preponderance of it fairly establishes the following facts: [759] 'The foreclosure proceedings in Cedar county ¡resulted in taking from the father and mother all of their ¡property, excepting some personal property owned by the father, consisting of stock and farm implements, nearly all of which was mortgaged. That property was turned over to John Dettman, a son of Eos anna Eherke, and a stepson of Albert Eherke, under a verbal agreement, by which he tooktheproperty, and obligated himself to pay the incumbrances thereon, and to support his mother and stepfather so long as they should live. That agreement was carried out for two years. Then John Dettman married, and left the farm where he and his parents had been living, and sold thé property, and perhaps some additions to it, to his brother Chris Dettman, and his half-brother^ the defendant Jacob Eherke. They paid five hundred dollars for the property, and assumed the obligation of John Dettman to support their parents. About the year 1883, Jacob and Chris rented the land in controversy. After a time Chris transferred his interest, in the property to his half-brother Charles Eherke, who assumed the obligation tó support his parents, and after a year Charles transferred his interest to Jacob, who has owned the property, and been under obligation to wholly support his parents since that time. He paid the rent of the farm until it was purchased, and has furnished all the money which has been used in paying the purchase price. ¡ Since their Cedar county farm was lost, and their personal property was transferred to John Dettman in the year 1879, Albert and Eosanna Eherké [760] have not had any property. They have lived with the sons, who have assumed liability for their support, and the mother has always kept house for them, but the father has not been able to see much for several years, and has not been able to do much work. Since the year 1879 they have been supported by their sons, and since Jacob has assumed the sole obligation for their support he 'has supplied what they have required. When the contract for the purchase of the land was made, the mother insisted on some arrangement which would secure to her a home, and proposed that the conveyance should be made in part to her. Jacob objected at first, but finally yielded, and the mother’s name was inserted in the contract, and afterward in the deed, as one of the purchasers. The appellant denies that the facts stated are shown by a preponderance of the evidence, and there is much which tends, to support the denial. The fact that the conveyance under which Mrs. Eherke holds appears to vest in her an absolute and unqualified title to an undivided .one-half ■of theland is entitled to great weight. Assessors’ books and transcripts therefrom were offered to show that live stock was assessed to. Mrs. Eherke in Cedar county for the years 1882 and 1883, and that she was assessed in Crawford county for similar property-in the years 1884 to 1888, inclusive, and that in the years 1889 to 1891, inclusive, property of that kind was assessed to her and Jacob as joint owners. It is also shown that John Dettman was assessor for some of these years, and that Jacob Eherke gave the information on which the assessment of 1885 was based. The money with which some of the payments for rent were made before the land was purchased was produced by-Mrs. Eherke. Witnesses also' testify that when the land was purchased she said she would purchase one eighty and Jacob the other, but the owner would not divide the land, and both signed the contract. There [761] Is also testimony to the effect that when the execution in question was levied Mrs. Eherke and Jacob were present, and stated that she owned one eighty and Jacob the other. There is testimony which tends to show that in the year 1884 Mrs. Eherke had seven hundred •dollars in notes secured by a chattel mortgage. The giving of those notes is explained, and the notes shown to be worthless. Some of the testimony for the plaintiff in regard to what was said and done at the time the land was purchased and when the assessments were made is contradicted by witnesses for the defendants. The defendants objected to the introduction of the assessors’ books in evidence and insist upon their objection here. It was decided in Adams v. Hickox, 55 Iowa, 632 (8 N. W. Rep. 485), that such books are not competent to prove the ownership of the property assessed, and the admission of the parties in interest in regard to the ownership of the property -at the time of the several assessments show but little in regard to it, and are not entitled to much weight. In Starr v. Stevenson, 91 Iowa, 684, (60 N. W. Rep. 217), it appears that an assessor’s book was introduced in evidence over-.the objection of the defendant, but that no exception to the ruling was preserved. The assessor who made the book was permitted to testify, but apparently from his own knowledge. [762] 5 6 7 [761] Although the real facts in this case are not established- beyond controversy, yet the evidence shows quite satisfactorily that Mrs. Eherke holds the title to an undivided one-half of the land in question only to secure the performance by Jacob of his agreement to- support her and her husband durin their lifetime; that neither she nor her husband contributed anything to the purchase price of the land, [762] excepting as it may have been done by a transfer of personal property to John Dettman in the year 1879, and by subsequent transfers of the same property. It is uncertain what the property transferred to Dettman was worth when he received it. He paid the incumbrances thereon to the amount of nearly seven hundred dollars, and two years later, when he transferred it, probably with some additions, the value of what was so transferred was from one thousand one hundred dollars to one thousand two hundred dollars. No evidence has been offered to show that the proceeds of any of it were used- in pur* chasing the land in question. It appears, therefore, that we have) a case where the evidence clearly shows that the title to an interest in the land sought to be subjected- to the execution is held by one of the judgment defendants as security only, and that she has contributed nothing toward the purchase of the title thus held. -Whatever doubt there may be in regard to other questions in the case, these facts are sufficiently established, even under the rule of Langer v. Meservey, 80 Iowa, 158 (45 N. W. Rep. 732), and other cases cited by the appellant that the proof to show that a deed absolute in terms is tobe treated as a mortgage must.be clear and satisfactory. It may.be that some of the personal property transferred by Albert Eherke to John Dettman, or its proceeds, was. used in paying for the land; but, as we have seen, if that be true, it has not been shown. Moreover, Albert Eherke, the judgment debtor, who owned the property, parted with his interest in it more than twelve years before this.action was commenced; transferred the possession of it at that time to- Ms stepson, and since then has had no interest in the property. The plaintiff held a-mortgage .on the property when it was trans-) ferred, and received payment of the amount due thereon from the stepson. He acquired title to the farm under [763] Ms decree of foreclosure, and then had litigation with the stepson in regard to the possession of it. He must be held to have had knowledge of the transfer of the personal property at about the time it was made; and the financial condition and the relationship of the parties interested in it, of which he had knowledge, were such that he must be charged with notice of the transaction. Inquiries, which the matters wMch he knew must have suggested, would have led to a discovery of the facts which he now claims constituted a fraud as against himself. See Mickle v. Walraven 92 Iowa, 423 (60 N. W. Rep. 633); Hawley v. Page, 77 Iowa, 240 (42 N. W. Rep. 193); Humphreys v. Mattoon, 43 Iowa, 556; District Tp. v. French, 40 Iowa, 601. We conclude that the plaintiff has failed to show himself entitled to any relief, and the decree of the district court is therefore affirmed-