Boling v. Clark

• Decision Date: 16 October 1891
• Citation: 50 N.W. 57,83 Iowa 481
• Parties: S. H. BOLING, Appellee, v. CALEB CLARK et al., Appellants
• Court: Iowa Supreme Court

50 N.W. 57

83 Iowa 481

S. H. BOLING, Appellee, v. CALEB CLARK et al., Appellants

Supreme Court of Iowa, Des Moines

October 16, 1891

Appeal from Madison District Court.--HON. J. H. HENDERSON, Judge.

THIS is an action in equity to quiet the title in the plaintiff to five acres of land. There was a decree for the plaintiff, and the defendant Ruth Clark appeals. Modified and affirmed.

MODIFIED AND AFFIRMED.

John Leonard & Son, for appellants.

Dabney & Guiher, for appellee.

OPINION

ROTHROCK, J.

I.

The cause was submitted to the court upon an agreed statement of facts, which are in substance as follows: The defendants were married in 1851, and have since that time lived together as husband and wife. At about 1855 they took up their residence upon a tract of land consisting of twenty-five acres. The title was taken in the name of said Caleb Clark, and the said land or part thereof is still used and occupied by them as a homestead. They have all these years lived in the same house and in the same place on the land. Afterwards they sold and conveyed twelve acres off the north end of said tract. They are now in the possession of eight acres of the land, and the controversy in this action is whether the homestead right and inchoate dower right of the wife still remains in the five acres not now in their possession. The facts as to the five acres are that, in the year 1856 or thereabouts, the said Caleb Clark sold and entered into a contract to convey said five-acre tract to one Philbrick for the sum of one hundred and twenty-five dollars, one-half of which sum was paid. The other half of the consideration was not paid and no deed of conveyance was ever made by Clark to Philbrick. In the year 1856, Philbrick conveyed the land by deed to one Rhodes. On the twenty-fifth day of June, 1869 Rhodes conveyed the land by deed to one Munger. In the year 1872, Munger, under claim of right, took actual possession of said five acres. In 1873, Munger conveyed the land to M. E Bedford, and in 1889 Bedford conveyed to the plaintiff.

The plaintiff and his grantors have paid the taxes on the land in controversy since the year 1865, and they have been in the actual possession thereof under claim of right since the year 1872. This action was commenced on the twenty-seventh day of November, 1889. The said Caleb Clark made no defense to the action. Ruth Clark answered, setting up her homestead and inchoate right to dower in the land. The homestead right is based upon the claim that she has never been divested of said right by a conveyance which she and her husband concurred in and signed the same joint instrument as required by section 1990 of the Code. The plaintiff claims that, as he, and those under whom he claims, have been in the continuous, open, notorious and adverse possession of said land under claim of right since the year 1872, such possession has ripened into a perfect title, which he can assert and maintain against all the world. We have held that such a title creates not only a defensive right, but that it is an affirmative right, which may be asserted and...