Opinion
May 15, 1928. Rehearing Denied November 16, 1928.
DEEDS: Conveyance — Insufficiency. A stipulation between 1 plaintiff and defendant in a divorce proceeding to the effect that the defendant, for the good of the children of the parties, shall not "convey, incumber, or mortgage in any manner" certain named lands does not constitute a conveyance to the children, even though the stipulation is fully embraced in the subsequently entered decree.
DEEDS: Validity — Clause Repugnant to Fee. A stipulation in 2 divorce proceedings, even though carried into the decree, is a nullity in so far as it seeks to render land exempt from the claims of creditors of the fee-title owner.
Appeal and Error: 4 C.J., § 2684, p. 751, n. 21. Deeds: 18 C.J., § 374, p. 360, n. 51; § 378, p. 361, n. 77. Equity: 21 C.J., § 199, p. 204, n. 65. Reformation of Instruments: 34 Cyc., p. 930, n. 88.
Appeal from Ida District Court. — R.L. McCORD, Judge.
Action to quiet title to certain land, by Clara Alvena Putensen, as guardian of the person and estate of Arnold Putensen, Edward Putensen, Ella Putensen, and William Putensen, minors, against R.J. Dreeszen, as administrator with the will annexed of the estate of John Putensen, deceased, and William Putensen, Frank Hoffman, H.H. Bochmann, M.M. White, Farmers Cooperative Company, and A.A. Erickson, creditors, and against Mrs. J.R. Lubsen, who is also one of the children of Clara Alvena Putensen, but not a minor. The plaintiff, on behalf of her wards, seeks to have the right, title, interest, and right of possession in and to certain Ida County real estate quieted and confirmed in her wards, as to a four-fifths interest. Mrs. J.R. Lubsen, by cross-petition, seeks to have a one-fifth interest quieted and confirmed in her.
Plaintiff predicates her action upon a certain stipulation and agreement made and executed by Clara Alvena Putensen and her husband, John Putensen, since deceased, which stipulation and agreement was made prior to the rendition of a decree of divorce between said parties, and thereafter embodied in said decree of divorce entered in the district court of Iowa in and for Ida County.
It is the plaintiff's contention that the stipulation and agreement and the decree of divorce embodying said stipulation constitute a conveyance, vesting in the plaintiff the fee title in the land in question. It is the contention of the defendants that the stipulation, together with the decree, does not, in any sense, constitute a conveyance, but simply restrains and enjoins John Putensen, the father, from conveying, incumbering, or mortgaging in any manner the land described in said stipulation and decree.
The defendants filed a motion to dismiss the petition, on the primary ground that the stipulation and decree are in no sense a conveyance of the real estate, and that said instruments grant no title whatsoever to plaintiff's wards. The trial court sustained the motion to dismiss, and plaintiff in open court elected to stand on her petition. From the decree entered, dismissing the petition at her costs, the plaintiff appeals. — Affirmed.
Fred H. Free and L. Mighell, for appellant.
Fred H. Free, for cross-appellant.
J.C. Walter, White White, and Besore Snell Bros., for appellees.
The pleaded facts, which must be viewed as admitted, disclose that plaintiff is the duly appointed, acting, and qualified guardian of the person and estate of her minor children; that, at the February, 1919, term of the district court 1. DEEDS: of Iowa in and for Ida County, there was pending conveyance: an action for divorce, in which Clara Alvena insuffi- Putensen (appellant herein) was plaintiff, and ciency. John Putensen was defendant; that in said action the said parties executed, acknowledged, and recorded a certain stipulation and agreement, which reads as follows:
"Whereas, the above named plaintiff and defendant are desirous of settling and agreeing upon the questions of alimony and the custody of their children:
"Now, therefore, it is hereby stipulated and agreed by and between the above named parties that, in the event that a decree of divorce is granted to the plaintiff, that there shall be awarded to her, as permanent alimony, a mortgage which P. McGuire is to give March 1, 1919, for $11,800, which said mortgage shall be a first lien upon the south half (S 1/2) of the northeast quarter (NE 1/4) of Section No. twenty-nine (29), Township eighty-nine (89) north, of Range No. forty (40) west of the fifth P.M., Ida County, Iowa. The said defendant shall authorize the said McGuire to make said mortgage direct to the plaintiff. The said mortgage is to draw 5% interest, and run for seven years. In addition to said mortgage, the plaintiff is to have $200, which shall be paid to her immediately upon the entering of a decree of divorce.
"For the good of the children that have been born to this plaintiff and defendant, it is hereby stipulated and agreed that, in the event a decree of divorce is entered by the court, it shall contain a provision that the defendant shall neither convey, incumber, or mortgage in any manner the southeast quarter (SE 1/4) of Section No. twenty-nine (29), in Township No. eighty-nine (89) north, of Range forty (40) west of the 5th P.M., in Ida County, Iowa, during his lifetime.
"It is further stipulated and agreed that the court shall award the care and custody of the children named in plaintiff's petition to the defendant, with a provision that those who are of school age, and as the younger ones attain that age, the plaintiff may have them during vacation times.
"And it is further stipulated and agreed that, when the said children are with one parent, the other shall have the right to visit them at reasonable hours and times.
"It is hereby further stipulated and agreed as to the children that have not yet attained school age that the plaintiff may have them, if she so desires, not to exceed three months during each year.
"It is the sense of this stipulation and agreement that the defendant shall properly care for and school the said children, and shall properly conduct and acquit himself; and, should he at any time fail in this regard and respect, it is contemplated by the parties hereto that the matter shall be brought to the attention of the court, for such a modification of the decree that shall be entered in this case regarding the possession and custody of said children as to the court shall seem proper.
"Clara A. Putensen, Plaintiff. "John Putensen, Defendant."
Thereafter, on the 19th day of February, 1919, the divorce cause was duly tried, and a decree entered granting to the plaintiff the relief prayed. The decree recites:
"The court further finds that the defendant is the owner of the fee title to [certain described real estate, the land in question]. The court further finds from the stipulation and agreement on file in this cause that they have agreed as to the custody of the children and the payment of permanent alimony, and as to the disposition of the lands heretofore described, in case a divorce was granted in this cause. * * * It is further ordered, adjudged, and decreed by the court that the defendant pay the plaintiff the sum of $12,000, as permanent alimony, the same to be paid in manner and form stated in the said stipulation and agreement now on file in this court. And it is further ordered, adjudged, and decreed that the defendant * * * is hereby enjoined and restrained from in any manner disposing of or conveying, incumbering, or mortgaging said lands during his lifetime * * *. It is further ordered, adjudged, and decreed that all the terms and conditions of the stipulation and agreement of the parties hereto relative to the custody of their children and the payment of alimony and the disposition of the land hereinbefore described be and the same is hereby confirmed, as fully and completely as though all the terms and conditions of said stipulation and agreement were set out at length in this decree."
It is further shown that John Putensen died testate on September 13, 1926, and that, at the time of the entry of the decree of divorce, and at the time of his death, the record title to the land in question was in the said John Putensen, and that there is no other real estate to which he had record title.
It is also shown that the defendant J.R. Dreeszen is the duly appointed and acting administrator with the will annexed of the estate of John Putensen, deceased, and that certain claims were filed against the said estate, and that these claimant creditors are parties defendant in this action. It is also shown that there is insufficient personal property belonging to the estate to pay said claims.
The trial court, in ruling on the motion to dismiss plaintiff's petition, made the following finding:
"It is true that he [John Putensen] did incur indebtedness for the payment of which the land may be subjected, but he was not enjoined from buying on credit, or otherwise incurring indebtedness. He died seized of the land. As his personal assets are inadequate, the land may be subjected to the payment of his debts, regardless of any testamentary provisions."
It may not be disputed that John Putensen died seized of the land referred to in the stipulation and in the decree of divorce. The decree recognized the fact that the title to the land was in John Putensen. There is no provision in either 2. DEEDS: he stipulation or decree that John Putensen validity: should lose title on any condition. The decree clause provides simply that the defendant John Putensen repugnant shall neither convey, incumber, nor mortgage the to fee. land. This injunction was respected and obeyed by John Putensen. Conditions in a deed against alienation and against liability for debts are void, as against public policy. Ricks v. Pope, 129 N.C. 52 ( 39 S.E. 638); Latimer v. Waddell, 119 N.C. 370 ( 26 S.E. 122).
The land was liable to involuntary alienation. McCleary v. Ellis, 54 Iowa 311; Teany v. Mains, 113 Iowa 53. No condition against liability for debts could be attached to the land in suit, as such condition would be repugnant to the fee in John Putensen, and would be void. McCormick Harv. Mach. Co. v. Gates, 75 Iowa 343; In re Estate of Ogle v. Burmister, 146 Iowa 33.
It is true that equity regards that as done which ought to be done, and by force of this maxim certain defects in instruments are corrected. If words of conveyance are found in an instrument, a court of equity will remedy a defect: for example, the want of a seal (Beardsley v. Knight, 10 Vt. 185 [33 Am. Dec. 193]); the absence of an acknowledgment (Junction R. Co. v. Ruggles, 7 Ohio St. 1). The cases relied upon by appellant involve instruments which contained words of conveyance, or words of such import. See American Emigrant Co. v. Clark, 62 Iowa 182; Witmer v. Shreves, 141 Iowa 496; Yeager v. Farnsworth, 163 Iowa 537.
It may also be conceded that equity will not be bound by technical rules, forms, or fictions, but will penetrate to the very substance of the matter. Keokuk Elec. R. P. Co. v. Weisman, 146 Iowa 679. Nor will equity fail to decree that which the parties intended to be done. Farmers Loan Tr. Co. v. Brown, 182 Iowa 1044. In the instant case, however, we are not dealing with legal technicalities, forms, or fictions. The fact stands that the legal title to the land was in John Putensen when he signed the stipulation and agreement. The title remained in him until the last moment of his life. He respected the limitations placed upon him in the decree of divorce, which embodied his signed stipulation and agreement.
The trial court correctly ruled the motion to dismiss. Wherefore, the decree entered is — Affirmed.
STEVENS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur.