Carnes v. Mitchell

• Decision Date: 23 May 1891
• Citation: 48 N.W. 941,82 Iowa 601
• Parties: CARNES ET AL. v. MITCHELL.
• Court: Iowa Supreme Court

82 Iowa 601

48 N.W. 941

CARNES ET AL.

v.MITCHELL.

Supreme Court of Iowa.

May 23, 1891.

Appeal from district court, Adams county; JOHN W. HARVEY, Judge.

Action to quiet title to real estate, and for an accounting of rents and profits. After a hearing upon the merits, the court found that there was no equity in the petition, and adjudged that it be dismissed. Plaintiffs appeal.Dale & Brown and Thos. L. Maxwell, for appellants.

W. O. Mitchell and H. M. Towner, for appellee.

ROBINSON, J.

In the early part of the year 1864, Allen Carnes owned the E. 1/2 of the S. E. 1/4, and the N. W. 1/4 of the N. E. 1/4, of section 24, township 73 N., of range 34 W., in Adams county. He had a wife named Rebecca, and four children. Of these, Mary had attained her majority, and was married to a man named Young. Elizabeth was about 17 years of age, Rachel was 12, and George W. was 5. During or about the month of February, 1864, Carnes killed a man named Prather, and was himself soon afterwards hanged by a mob in Adair county. In March, 1864, after the killing of Prather, Carnes conveyed the land to one Parish, it is alleged, as trustee, and after his death in April, 1864, Parish conveyed it to the widow and the three minor children. Soon after the death of Allen Carnes his family, with David Carnes, the father of Allen, and others, left Adams county for Oregon by the overland route. At Council Bluffs the mother caused a letter to be written to John Barnett, which resulted in his being appointed guardian of the three minor children. After qualifying as guardian, he took charge of the land, leased it, and collected rents. The family journeyed westward from Council Bluffs. Soon after leaving Omaha, Elizabeth was married to a man named Burch. In August, 1864, in Idaho, the mother died, and Rachel and George were left with a family named Miller, in Baker county, Or. David Carnes, the grandfather, went on to Harrisburg, Or., where he has since resided. Elizabeth remained in Oregon, not far from the Millers, until the next year, when she left, going to Portland and San Francisco; thence, by way of Panama, to New York; and thence to Macon, Ga., where she has since resided. After leaving Oregon, she remarried, and her name is now Davis. The Millers moved from Oregon to Utah, taking Rachel and George with them. Miller died in the year 1873. Rachel lived with the Millers until she married a man named Shangle, in the year 1871, and since that time she has lived in Utah and Idaho. George lived with Miller until the latter's death, and afterwards with Mrs. Miller, until the year 1876. He has resided in Utah since he went there with the Millers. There was no communication of any kind between Elizabeth, and Rachel and George, after they separated, in Oregon, until after this action was commenced, in the year 1888. The sister, Mrs. Young, in December, 1865, conveyed her interest as heir in the land in controversy, and moved to Kansas, where she died. In January, 1877, Rebecca J. Moore, a grantee of the interest conveyed by Mrs. Young, obtained a decree in the circuit court of Adams county fixing the interest thus conveyed as an undivided one-fourth of the land in controversy. Barnett, as guardian of Elizabeth, Rachel, and George, rented all the land from the year 1864 until the decree mentioned was rendered, and after that time until the year 1883 he rented three-fourths of it. He made reports as guardian, from time to time, until December, 1886, when his final report was made. It appears that he had paid Mrs. Davis, at different times, sums of money realized by him as guardian, but that he knew nothing of Rachel and George, and supposed them to be dead. In July, 1883, Mrs. Davis visited Adams county, and acting upon the belief that Rachel and George were dead, and that she was their sole heir, procured the appointment of herself as administratrix of their estates, and in December, 1886, filed her final report. The final reports of the guardian and administratrix showed full settlement, and a delivery to Mrs. Davis of all money and property which had been derived from the land. The interest in the land acquired by Rebecca J. Moore was conveyed to R. A. Moore, and in the year 1883 he commenced an action against Mrs. Davis and Barnett, in which he claimed that Rachel and George were dead; that Mrs. Young, as heir, had inherited an undivided one-fourth of the land from them; that the conveyance from Mrs. Young had the effect to transfer the title to an undivided one-half of the land to her grantee; and that said R. A. Moore, as grantee of that title, was the owner of an undivided one-half of the land; but on final hearing, in March, 1884, his petition was dismissed. It also appears that in the year 1883 Moore visited Mrs. Davis in Macon, and attempted to purchase her interest in the land; that she at one time said she would sell it for the price offered, but afterwards refused to do so; that Moore subsequently caused her to be served with notice in an action which he commenced to enforce a specific performance, and that she employed an attorney to protect her interests. What was done in that action does not appear, but it is not claimed that Moore accomplished anything by it. In August, 1884, the interest acquired by Rebecca J. Moore, and afterwards by R. A. Moore, was conveyed to Mrs. Davis. At about the same time Mrs. Davis executed a mortgage on the land to secure a loan for $600, which is due and unpaid. In February, 1886, Mrs. Davis executed a conveyance for all the land to one Daley, and he made a similar conveyance to W. O. Mitchell, the defendant. Mitchell then commenced an action against “G. W. Carnes, Rachel Carnes, and the unknown heirs of George W. and Rachel Carnes,” to quiet his title to the land. The original notice was not served personally, but was published. There was no appearance for the defendants, and on the 2d day of April, 1886, a decree was rendered in favor of Mitchell, as prayed. More than two years after that decree was rendered, George W. Carnes and Rachel Shangle commenced this action, in which each claims to be the owner of an undivided one-fourth of the land in controversy. They attack the decree in favor of Mitchell on the ground that it was rendered without jurisdiction, and on other grounds, which we need not notice. The defendant denies that plaintiffs are the children of Allen and Rebecca Carnes. He claims that the alleged title of plaintiffs is barred by the statute of limitations, and that plaintiffs are estopped by their laches from obtaining relief. Defendant also claims that the mortgage executed by Mrs. Davis was given to secure money which was expended in defending the title to the land, and that the amount so expended has inured to the benefit of plaintiffs. The court found that plaintiffs were not entitled to any relief, and rendered judgment against them for costs. The title of defendant to an...