Ahrens v. Ahrens

• Decision Date: 17 November 1909
• Citation: 144 Iowa 486,123 N.W. 164
• Parties: AHRENS ET AL. v. AHRENS ET AL.
• Court: Iowa Supreme Court

144 Iowa 486

123 N.W. 164

AHRENS ET AL.

v.AHRENS ET AL.

Supreme Court of Iowa.

Nov. 17, 1909.

Appeal from District Court, Clinton County; A. P. Barker, Judge.

This is an action for partition. There was a demurrer to the petition, which challenged the alleged title of the plaintiffs. The demurrer being sustained, and the plaintiffs refusing to plead further, the petition was dismissed, and they have appealed. Affirmed.Skinner & Coe, for appellants.

S. C. Scott and John B. Ahrens, for appellees.

EVANS, C. J.

Although in form this is an action for partition, in its real effect it is an action to try the title of the plaintiffs to an undivided interest in certain land in Clinton county. The common source of title under which both parties claim was Bernard Ahrens, who died intestate December 18, 1860, seised of the undivided half of a quarter section of land; his brother, J. D. Ahrens, being seised of the other undivided half thereof. Bernard left neither widow nor children. His mother, Trinke Ahrens, was his only surviving parent. He left surviving him two brothers and two sisters, the only other children of his mother. The mother was resident of the United States, and died March 19, 1862. One brother and sister were residents of the United States at the time of the death of Bernard, and ever after. The other brother and sister were nonresident aliens, residents of Oldenberg, Germany, and continued to be nonresident aliens until 1869, when they removed to the United States. The resident brother was J. D. Ahrens, now deceased, the owner of the other undivided half of the quarter section at the time of Bernard's death, and the father of the defendants in this suit. His resident sister was Wilhelmina Schmidt, who conveyed to her brother, J. D. Ahrens, all her interest in Bernard's estate. The nonresident brother was A. H. Ahrens, plaintiff herein, and the nonresident sister was Mrs. Becker, now deceased, the mother of the other plaintiffs. The contention of the plaintiffs is that the nonresident brother and sister held each an undivided quarter of Bernard's real property by inheritance. The contention of the defendants is that the resident brother and sister took it all, subject to the mother's right. Both parties in argument seem to assume that the mother had a life estate. Whether this is a strictly accurate assumption is not material for our consideration, and the mother's rights may be disregarded for the purpose of our discussion.

Under the statutes of this state prior to 1868, a nonresident alien could not inherit real estate therein. Stemple v. Herming-houser, 3 G. Greene, 408;Krogan et al. v. Kinney, et al., 15 Iowa, 242;Rheim et al. v. Robbins, 20 Iowa, 45;Greenheld v. Stanforth, 21 Iowa, 595;Brown v. Pearson, 41 Iowa, 481;Furenes v. Mickelson, 86 Iowa, 508, 53 N. W. 416; sections 2489, 2490, Revision 1860. It appears, however, that at the time involved in this controversy there was in force a treaty between the United States and Hanover, which contained the following provision: “Where, on the decease of any person holding real estate within the territories of one party, such real estate would by the laws of the land descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation, and exempt from all duties of detraction on the part of the government of the respective states.” It is conceded by the defendants that, in so far as there was any inconsistency between this treaty and the Iowa statute, the treaty must be deemed paramount. The effect of the treaty was not to nullify the statute, but to suspend it in its application to a citizen of Hanover. The contention of the plaintiffs is that the effect of this treaty was to cast descent upon the nonresident brother and sister, and that such descent carried with it the full fee title, and that they have never been divested of such title. The argument at this point is that by virtue of this treaty the nonresident alienage did not disqualify them to take title of the real estate. It only disqualified them to hold such title beyond a reasonable time. It is conceded that ordinarily they could not have held the title beyond a “reasonable time.” They claim, however, that they were relieved of this condition: (1) By the legislation of 1868, which removed their disqualification; and (2) by their removal to the United States in 1869.

It is contended for the defendants that the title of the nonresident aliens, such as it was, was fully terminated by operation of law prior to the legislation of 1868 by the failure of such nonresident aliens to sell the real estate within a “reasonable time,” and that the full and complete title had vested in the ancestor of defendants prior to such legislation. This view was sustained by the trial court. There is much discussion in the cases as to the nature of the title which nonresident aliens held under the terms of this treaty. Some authorities denominate it a base or qualified fee, and others as a determinable fee. The terminology is not of controlling importance. That the right to sell carried with it the ownership as a necessary incident to the power of sale is held by all the authorities. That such ownership was something less than a fee simple absolute is also quite beyond discussion. That...