In Re Robertson's Estate , 246 Iowa 685 ( 1955 )

Oliver, J.

The estate of Carl B. Robertson, deceased, late of Polk County, is in course of probate in Polk District Court. The administrator with will annexed filed therein an instrument entitled “Report and Application to- determine and obtain assets.” It states: Among the assets of the estate claimed by the administrator is land (legal description) in Guthrie County, Iowa, sold on contract in 1946 by decedent to defendants Glenn E. Sanders, Jr., and Verdell Sanders, about which there is dispute; in 1942 decedent deeded the farm to Lulu R. Forbes, now- defendant Lulu R. Flatley, and she claims it; in 1953 decedent executed a deed purporting to convey the land to defendant Ellen Chinnow, subject to the Sanders contract, and she claims the contract and the record title to the real estate, and has not accounted for moneys received by. her on the contract; this was merely a paper transaction between decedent and his trusted employee Ellen Chinnow, without actual consideration or delivery of deed or assignment of contract and was not intended to create an actual right.

The Report and Application prays that the court “determine, conclude and decree the rights of the plaintiff [administrator] and of the defendants and each of them, in and to the real estate” and the contract for the sale thereof, that defendant Ellen Chinnow be required to account for receipts by her on the contract, and for such other orders as shall seem appropriate.

Defendants Ellen Chinnow, Glenn E. Sanders, Jr., and Verdell Sanders moved for change of place of trial to Guthrie District Court, under rule 175, Rules of Civil Procedure, which provides in part, “An action brought in the wrong county may be prosecuted there until termination, unless a defendant, before answer, moves for its change to the proper county.” The contention the action was brought in the wrong county was based upon section 616.1, Code of Iowa, 1954. The district court overruled the’motion. From this order we granted Ellen Chinnow an appeal in advance of judgment.

Code section 616.1, provides: “Actions for the recovery of real property, or of an estate therein, or for the determination of such right or interest, or for the partition of real property, must be brought in the county in which the subject of the action or some part thereof is situated.”

I. This provision and similar provisions in statutes of various other states were derived from the Field Code of New York. See 2 A. L. R.2d 1254, 1262; Iowa Code Annotated, section 616.1, History and Source of Law.

There are many decisions of this court involving the statute. We have held it applicable to actions by either party to a contract for the sale of real estate against the other for specific performance of such contract. Johns v. Orcutt, 9 Iowa 350; Donaldson v. Smith, 122 Iowa 388, 98 N.W. 138. Bradford v. Smith, 123 Iowa 41, 43, 98 N.W. 377, states there are practical advantages from this construction in that such decrees affect title to land and it is always advisable to have them recorded in the county where the land is situated. Titus Management Co. v. Kelsey, Judge, 221 Iowa 1368, 1372, 268 N.W. 23, 25, makes reference to the foregoing and various other like decisions of this court, and states:

“It is evident that the intention and purpose of the legislature in passing the section under consideration here was to have the records of the county where the land lies show all matters that in any way affect the title to said land. The cases that we have reviewed, which practically cover all the cases decided under this section of the statute, point to this undoubted conclusion.”

In Lee v. American Trust & Savings Bank, 209 Iowa 609, 228 N.W. 570, an action by the vendee for rescission of the contract, personal judgment against the vendor and for the establishment and foreclosure of a lien on the land for purchase money paid under mutual mistake was held properly brought in the county where the land was situated. To the same effect is Eckhardt v. Bankers Trust Co., 218 Iowa 983, 249 N.W. 244, 252 N.W. 373, an action to cancel a trust deed or mortgage and the lien thereof and to quiet plaintiff’s title to the land.

Whalen v. Ring, 224 Iowa 267, 271, 272, 273, 276 N.W. 409, 411, was an action for the cancellation of notes and real-estate mortgages securing the same. It was contended the action was transitory, not local, and that if plaintiffs prevailed the decree would operate in personam only and in no sense in rem. The court stated the action “involves a determination of a right or interest in real estate and must be brought in the county where it is situated. The decree rendered in the case will necessarily determine the validity of the mortgages and such judgment will manifestly affect and determine rights in real property.

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“Whether an action is in personam or in rem is not the ultimate test as to whether an action is local under section 11034 [now section 616.1]. The test is, does the action involve necessarily a determination of a right or interest in real estate?”

The text in 56 Am. Jur., Venue, section 11, 1954 Supplement, states: “In practically all but one of the jurisdictions in which the question has arisen liens, including mortgag’es, whether legal or equitable, contractual or noncontractual, have been held, under the applicable statutes, to be an estate or interest in land within venue statutes permitting or requiring actions in respect thereof to be brought in the county where the land is situated. This rule has been applied in various actions to foreclose, cancel, etc., mortgages or deeds of trust * *

Cavalier County v. Gestson, 75 N. D. 657, 664, 31 N.W.2d 787, 791, 2 A. L. R.2d 1254, 1259, points out that the statute, “is not restricted to an action for the recovery of real property ‘or of an estate or interest therein.’ It provides further that it applies to an action ‘for the determination in any form of such right or interest.’

“ ‘The clause relating to the recovery of real property or of an estate or interest therein also contains the provision “or for the determination in any form, of such right or interest.” This is a broad provision which seems intended to cover other cases, no matter what their form, which actually involve a real or substantial interest in real property although, technically, they may not fall within the classes which are specifically named.’ Kaluzok v. Brisson (Cal. App.) 161 P.2d 64 [65].

“ ‘It is significant that the coverage of the statutes includes a mere “interest” as well as an “estate” in lands. “The word ‘interest’ is the broadest term applicable to claims in or upon real estate. In its ordinary signification among men of all classes it is broad enough to include any right, title, or estate in, or lien upon, real estate. One who holds a mortgage upon a piece of land for half its value is commonly and truthfully said to be interested, to have an interest, in it.” Ormsby v. Ottman [8 Cir.], 85 F. 492, 497 [29 C. C. A. 295]; 4 Words and Phrases [First Series], p. 3699.’ Hatlestad v. Mutual Trust L. Ins. Co., 197 Minn. 640, 268 N.W. 665, 667.”

The text in 2 A. L. R.2d 1265 states: “In some jurisdictions liens, including mortgages, whether legal or equitable, contractual or noncontractual, are held to be an estate or interest in land within venue statutes permitting or requiring actions in respect thereof to be brought in the county where the land is situated.”

In 2 A. L. R.2d 1268 is the statement: “Suits for the cancellation of mortgages or deeds of trust have been held to be in relation to an estate or interest in land within the meaning of venue statutes.”

Decisions from various jurisdictions, including Iowa, are cited in support of this rule. There are some variances in decisions of other courts.

Counsel for plaintiff states “this is an action brought by the administrator, with will annexed, as a Report and Application to Determine and Obtain Assets.” However, despite the language of the so-called report and application it is a petition for a judgment setting aside two deeds of decedent and the assignment to Ellen Chinnow of the contract of sale of the land. The prayer is that the court determine and decree the rights of the parties in the real estate and contract, that Ellen Chin-now account for payments made her on the contract and for other appropriate orders.

Although for some purposes this contract of sale is considered personal property, we conclude it is an interest or estate in land within the scope of the statute providing that actions for the determination of a right or interest in real property must be brought in the county where the same or some part thereof is located. It is clear, also, that the parts of the action for the setting aside of each of the two deeds made by decedent are within the purview of the statute.

II. Appellee contends the statute is not applicable to actions involving the legal representatives of estates of decedents. With this contention we do not agree. Long, admr. v. Garey Investment Co., 135 Iowa 398, 401, 112 N.W. 550, 551, was such an action. There the court made reference to the statute, and stated: “Suits to set aside deeds and declare the property that of another than the grantees therein are clearly within this statute, and therefore should be brought in the county where the real estate or some part of it is situated.”

Appellee quotes at length from Hulburd v. Eblen, 239 Iowa 1060, 33 N.W.2d 825. That case involves an automobile-damage venue statute, now Code section 616.18, and is not here in point. The decision refers to Federal Land Bank v. Ditto, 227 Iowa 475, 288 N.W. 618 (both decisions written by Judge Hale), and points out, among other things, that the Ditto case was a foreclosure proceeding in which the venue was fixed by statute (now Code section 654.3 similar to the statute here involved) and was mandatory and an action in rem with exclusive jurisdiction within the county where the land was situated and which could not have been brought in the county where the probate proceedings were pending.

III. The record does not indicate defendants objected to the manner in which the action was instituted and they were brought into court. We are given to understand the proceeding was in probate. The record and briefs upon appeal are captioned In Equity. It does not appear any question of error in the kind of proceedings adopted was raised in the trial court before the appeal was taken. See sections 611.7, 611.8 and 611.9, Code of Iowa, 1954. Any apparent suggestion that the kind of proceedings may have some relation to the right to a change from Polk County to Guthrie County is not well founded. The only basis for such change is that the action was brought in the District Court of the wrong county.

IV. Appellee’s brief, filed January 21, 1955, contains a motion to dismiss the appeal on the ground appellant did not file notice of appeal. Rule 335, Rules of Civil Procedure, provides appeals must be taken within thirty days from the entry of the order, etc., appealed from, provided, that where an application for an appeal in advance of final judgment is made within thirty days the Supreme Court or a justice thereof may extend the time for filing the Notice of Appeal in the event the appeal is granted. In this case the order of the trial court was made November 5, 1954. The application for an appeal was made December 1 and on that day a Justice of the Supreme Court set the hearing for December 10. Prompt notice of this was given counsel for appellee. He filed resistance thereto December 9, and made oral resistance at the hearing December 10. December 13, the justice entered “Order Granting Interlocutory Appeal” in which the times for filing the record and the briefs and for submission were shortened. However, appellant did not apply for an extension of time for filing notice of appeal and no such extension was ordered. It is apparent this was due to oversight. The regular time for appeal had expired before the order granting the appeal was made. Without an extension of time for filing notice of appeal that order was useless. The appeal has been fully argued by both parties and submitted on the merits. Under the circumstances the court, by a majority vote, ordered that appellant be granted additional time within which to file notice of appeal. Appellant has complied with this order. Hence, the appeal will not be dismissed. However, the cost of printing appellant’s reply and resistance to motion to dismiss is ordered taxed to appellant.

The order of the district court is reversed and the case is remanded for further proceedings in accordance herewith. — Reversed and remanded.

Wennerstrum, C. J., and Garfield, Hays, Mulroney, and Smith, JJ., concur. Thompson, J., dissents in part.