Bolton v. Oberne, Hosick & Co.

• Decision Date: 03 February 1890
• Parties: BOLTON v. OBERNE, HOSICK & Co
• Court: Iowa Supreme Court

44 N.W. 547

79 Iowa 278

BOLTON v. OBERNE, HOSICK & Co

Supreme Court of Iowa, Des Moines

February 3, 1890

Decided January, 1890.

Appeal from Polk District Court.--HON. JOSIAH GIVEN, Judge.

ACTION in equity to quiet title. There was a trial on the merits and a decree for plaintiff. The defendants appeal.

REVERSED.

C. C. & C. L. Nourse, for appellants.

Conrad & Campbell and Hugh Brennan, for appellee.

OPINION

ROBINSON, J.

The property in controversy is "the west sixty feet of lot 9, block 19, East Fort Des Moines, now included in the city of Des Moines." In the year 1867, it was owned by B. F Allen. At some time, not later than the year 1869, he contracted to sell it to Hazard Parks and his son T. J Parks, and on the twenty-second day of October, 1878, a deed was executed in fulfillment of the contract by the assignee in bankruptcy of Allen. Hazard Parks was a married man, the head of a family, when the property was purchased; and he lived on and occupied it as a homestead from about the time of its purchase until his death, which occurred in April, 1883. While the premises were so occupied, and on the twenty-ninth day of October, 1878, Hazard and T. J. Parks executed a deed for them to "Leah Parks." On the tenth day of August, 1885, a deed for the premises was executed, in the name of Leah Parks, to plaintiff. In the year 1884, T. J. Parks and A. J. Parks, also a son of Hazard, were engaged in business, and contracted an indebtedness to defendants. On the thirtieth day of March, 1885, defendants recovered a judgment on said indebtedness against T. J. Parks and A. J. Parks, in the district court of Polk county, for $ 259.16, besides interest and costs. An execution was issued to satisfy the judgment; and on the twenty-seventh day of November, 1885, the property in controversy was sold to defendants under the execution, and a certificate of sale was duly issued to them. The wife of Hazard Parks was named "Leah." She was the mother of T. J. and A. J. Parks, and died in September, 1881. Hazard and his wife, Leah, had several daughters, and among them one who was known to the neighbors of the family as "Lovilla," but whose full name, as appellee contends, was Leah Lovilla Parks.

I. Appellants insist that the property in controversy was a homestead, within the meaning of the law, when the deed of October 29, 1878, was executed; that it was made to the wife of Hazard; that upon her death it became the property of her husband and children, as she died intestate, and that upon the death of Hazard, intestate, the title to the premises became fully vested in their children, of whom seven are living. Appellants further contend that, if the grantee of the deed was in fact the daughter Lovilla, the deed was void as to the interest of Hazard, for the reason that it was his homestead, and his wife did not join in the conveyance. Therefore, that an undivided two-sevenths of an undivided one-half of the premises would be subject to the payment of their judgment. It is conceded that the premises were worth five thousand dollars when plaintiff obtained his conveyance from Leah Parks. So far as the record shows, the conveyance to Hazard and T. J. Parks constituted them tenants in common of the property conveyed. Code, sec. 1939. A homestead right in land owned by tenants in common may be acquired by one of the co-tenants (Thorn v. Thorn 14 Iowa 49; Wertz v. Merritt, 74 Iowa 683, 39 N.W. 103); and such right can be acquired in land held only by equitable title (Hewitt v. Rankin, 41 Iowa 35). The evidence clearly shows that Hazard Parks had a homestead right in the premises when the deed of himself and son was executed to Leah Parks. We are also of the opinion that the grantee was the daughter, Leah Lovilla Parks. It is true, as claimed by appellants, that there is a strong showing to the contrary. The neighbors of the family knew the daughter only by the name "Lovilla," or "Villa." A lady who employed her for two years knew her only as "Lovilla;" and a brother-in-law knew her only as "Lovilla" or "Villa" during an...