Clarke v. Dirks
| Citation | 178 Iowa 335,160 N.W. 31 |
| Decision Date | 17 November 1916 |
| Docket Number | No. 30600.,30600. |
| Parties | CLARKE v. DIRKS ET AL. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Jones County; Milo P. Smith, Judge.
Action in partition. Opinion states the facts. Judgment for the defendants in the court below. Plaintiff appeals. Affirmed.Remley & Remley, of Anamosa, for appellant.
J. W. Doxsee, of Monticello, for appellees.
Plaintiff is a daughter of one John Bailey, deceased. She claims to be the owner of an undivided one-eighth of a certain 40 acres of land of which he died seised. She brings this action in partition.
John Dirks, the defendant, denies that the plaintiff has any interest in the land, and alleges that he is the owner through mesne conveyances from the children of the said John Bailey, except this plaintiff, and, as against her claim, he pleads adverse possession for the statutory period.
The evidence discloses the following facts:
Plaintiff's father, John Bailey, had eight children, Margaret the plaintiff, Kate, Frank, Elizabeth, Mary, John, Louise, and Phillip. He died February 5, 1875, seised of the real estate in controversy, with other real estate, and leaving surviving him these eight children and his wife. He died intestate. His wife was appointed administratrix of his estate, and on August 6, 1890, filed her final report, which shows no personal property for distribution. In the administration of the estate it was found necessary to sell, and under the order of the court the administratrix did sell certain of the real estate for the payment of debts. A suit was instituted in court by the administratrix for this purpose.
It appears, also, that a certain part of the land was set off to the widow as her distributive share. An exact description of the land sold for the purpose of paying debts and set off to the widow, is not material to this controversy.
Upon the filing of her report, the administratrix was discharged, and the estate closed.
On March 9, 1880, Mary, Louise, Elizabeth, and Kate, children aforesaid of John Bailey, deceased, quitclaimed their interest in the land in controversy to their brothers, Frank and John. This deed was recorded February 21, 1881. On the same day, the interest of the other heirs, except plaintiff's, was conveyed to them, so that thereafter John and Frank were the owners of the interests of all the heirs, except Margaret, in the land in controversy. On January 13, 1883, John Bailey, one of the grantees above named, conveyed this land to his cograntee, Frank Bailey, by warranty deed. Frank Bailey thereafter continued to occupy it until February 16, 1891, when he conveyed the property, by warranty deed, to the defendant John Dirks. This deed was duly recorded on the 2d day of March, 1891, and contained all the usual covenants of seisin, and warranted the premises against the lawful claims of all persons whomsoever. John Dirks paid full consideration for the land at the time of the purchase. He did not know of Margaret Clarke, the appellant, or that she claimed any interest in the land. Nor did he learn this fact until the suit was brought. John Dirks immediately took possession of the land, and occupied and cultivated the same ever since. He has paid taxes, tiled and drained the land, kept up the fences, mortgaged the land, and treated it as his own ever since he received the deed from Frank Bailey.
The evidence discloses that Margaret Clarke, the plaintiff, is 68 years old, and resides in the township of Galloway, Province of Ontario; that her father, John Bailey, deceased, moved to Iowa in 1865 from Rochester, N. Y.; that she was 19 years of age at the time; that John Bailey had been twice married; that plaintiff was a child of the first union; that when he moved to Iowa, he took all his other children and his second wife with him; that plaintiff did not go, but went to her present residence, and has remained there ever since. She has never been in the county in which this land is situated. She knew that her father moved to Iowa, but did not know in what part of Iowa he had taken up his residence, and never knew, previous to his death, where he resided in Iowa. She never corresponded with him, nor with any of her brothers and sisters. She says she did not know, at the time of his death, where he lived or where he died; that she learned of his death 26 or 27 years before this suit was instituted; that, after learning of his death, she made no inquiry concerning his estate; that she never conveyed her interest in her father's estate to any one.
It appears, further, that none of the family knew where the plaintiff resided until about the year 1886, 11 years after the father's death.
It appears that at the time these conveyances were made by the several heirs to John and Frank, it was stipulated and agreed between them that each should pay to Margaret, the plaintiff, a stipulated sum, which was thought by them to be her interest in the land conveyed. The amount agreed upon was $200. It was agreed that each of the five of the above heirs should pay to her $40. In 1886, Frank wrote the plaintiff, telling her of her father's death, and inclosing her $40 as his share, and $40 claimed to represent the amount due her from her sister Mary. Though the letter is not in evidence, she testified that she heard of her father's death in 1886. She was asked this question:
She was asked the following questions and answered:
She further testified:
It appears also from the record that in 1887, Frank visited his sister, the plaintiff, at her home in Canada. He claims that he told her what had been agreed upon when the property was sold; that the five agreed that if they heard from her, they would make up $200; that he had sent her $40 of his own money, and $40 for Mary. He was asked this question:
Upon this record, the court found for the defendant, and dismissed plaintiff's petition.
There is practically no dispute in the facts. The only question here for our determination is, Does this record show adverse possession in Dirks such as will bar the plaintiff's claim to an interest in the land?
When John Bailey died, all his children, including the plaintiff, became tenants in common of the property in controversy. When the children quitclaimed their interest only in the estate to Frank and John, we may assume that Frank and John became tenants in common then with the plaintiff in this property. When, in 1883, John conveyed the property in question to his brother Frank, we may assume, under the peculiar facts of this case, that Frank then became tenant in common with his sister, the plaintiff. When, however, in 1891, Frank conveyed, by warranty deed, the premises in question to the defendant Dirks, a stranger who had knowledge of Frank's tenancy, executed to him a warranty deed, with covenants of seisin in Frank, warranting the premises against the lawful claims of all persons whomsoever, a different question arises. The question suggested is, Did John Dirks then become a tenant in common with the plaintiff? Or did the making of this deed by Frank to Dirks work an ouster of the plaintiff and start the statute of limitations against her? Dirks, by himself or tenant, has been in possession of this land ever since. Dirks knew nothing of the plaintiff at the time he accepted the deed from Frank. He entered into the possession as the sole owner of the premises upon receipt of the deed, has occupied the same ever since, cultivated the entire premises, tiled a portion, rebuilt fences around it, and kept them in repair, mortgaged it as his own, and, in every way asserted, and we think the record shows, believed, that he was the absolute owner of the property. The record further shows that Frank, at the time he made the deed to Dirks, told him that he had acquired the interest of all the other heirs. When Dirks took possession, he claimed to own the fee to all the land, and so believed up to the time this action was commenced.
[1][2][3] The claim of the plaintiff is that, as the entry of the heirs through whom Dirks claims title was not adverse to the plaintiff, their possession, after entry, was therefore not adverse, and defendant Dirks, after conveyance to him, stood as the others stood, a tenant in common with the plaintiff. The general rule is, the entry and possession of one tenant in common is the entry and possession of all. Where one tenant in common enters into possession of the property, his entry and possession is rightful, but is held to be for the use and benefit of all his cotenants....
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