Collier v. Smaltz
| Decision Date | 15 November 1910 |
| Citation | 128 N.W. 396,149 Iowa 230 |
| Parties | DAVID A. COLLIER, Appellant, v. J. G. SMALTZ and IOWA RAILROAD LAND COMPANY v. DAVID A. COLLIER and GEORGE B. SMYTH, Appellants |
| Court | Iowa Supreme Court |
Appeal from Plymouth District Court.--HON. WILLIAM HUTCHINSON Judge.
ON hearing, the petition in the first-entitled case was dismissed and decree entered as prayed in the last. The plaintiff in the first and defendants in the last appeal.
Affirmed.
F. T Hughes, Jacob Sims, and H. S. Martin, for appellants.
Zink & Roseberry, for appellee Smaltz.
Charles A. Clark, for appellee, Iowa Railroad Land Co.
The two cases were tried together, but separate decrees were entered. They are submitted on the record so made. In one, David A. Collier v. J. G. Smaltz, the plaintiff, as grantee of George B. Smyth, prays that title to an undivided one-third interest in a section of land in Plymouth County be established in him for that, as is alleged, said Smyth never parted with his distributive share therein, the same having been owned by the wife of said Smyth, under whom through mesne conveyances the defendant Smaltz claims. In the other, the Iowa Railroad Land Company v. David A. Collier and George B. Smyth, the plaintiff alleged that its grantor acquired title to about two hundred and forty acres of land in said county through mesne conveyances of Mrs. Smyth, who was owner of the land at one time; that the same was platted, and numerous lots sold and conveyed to divers persons; that the incorporated town of Kingsley is located thereon; that all the lots and lands undisposed of by said grantor were deeded to plaintiff in 1888, a part of the consideration being that plaintiff should be responsible for all liabilities of its grantor, and especially for any breaches of warranty in the conveyance of lots, and it prayed that title be quieted in plaintiff and its grantees and the grantees of its grantor, and for other appropriate relief. In a crossbill Collier asked relief such as is prayed in the first case. In both the main issue is whether George B. Smyth was entitled to maintain an action for his distributive share in these lands in January, 1908, when he executed deeds of conveyance thereof to the plaintiff. It appears that George B. and Martha M. Smyth were married in 1850. She acquired the lands in controversy and land in Humboldt and other counties from the Des Moines Valley Railroad Company January 31, 1874, and executed separate deeds for the land in each county, in which her husband joined, transferring the same to P. Thornton Lomax September 7th following, and these were duly recorded. At the same time Lomax executed a written defeasance reciting that he held the note of George B. Smyth & Co. for $ 12,000 payable with interest at the rate of ten percent per annum after four months from date to A. Hosmer, A. M. Moody and Lomax as executors of the estate of B. F. Moody, deceased, and stipulating that, in event of payment of principal, interest, and taxes within one year from maturity, Lomax would reconvey the land. Such payment was not made, and for this reason foreclosure proceedings were begun, and a decree of foreclosure entered December 18, 1877, in the district court in and for Humboldt County ordering the sale of all the land for the satisfaction of the debt. See Lomax v. Smyth, 50 Iowa 223. Thereafter, and on the 29th day of May, 1879, Lomax and Mrs. Smyth entered into a stipulation reciting facts as stated, and adding that, in consideration of the premises and the full satisfaction and discharge of the debt, interest, and costs in said decree provided, "the said party of the first part doth hereby, relinquish, release, bargain, sell, and convey" certain real estate described, including the lands in controversy. This instrument was not signed by George B. Smyth, but it was recorded in Plymouth County June 10, 1879. The defeasance was never recorded there, and no transcript of the foreclosure proceedings was ever filed there. The indebtedness was that of Smyth and with the interest and taxes amounted to $ 20,628.47 when Mrs. Smyth executed the release or deed last mentioned. Whether the lands were worth this or more does not appear. Mrs. Smyth died April 21, 1903. Her husband had been committed to the hospital for the insane at Mt. Pleasant February 1, 1888, and was discharged therefrom May 1, 1891. He was again committed to the hospital February 2, 1905, and paroled November 21, 1907, since which time he was in the keeping of his family until death.
From this recital of facts it is apparent that, as between the Smyths and Lomax, the deeds and defeasance constituted a mortgage differing from an ordinary mortgage, in that the fee passed to Lomax. Lomax v. Smyth, supra. Burdick v. Wentworth, 42 Iowa 440; Richards v. Crawford, 50 Iowa 494; Haggerty v. Brower, 105 Iowa 395, 75 N.W. 321. Mrs. Smyth remained the equitable owner, and the effect of the decree entered in the suit of Lomax against the Smyths was to foreclose against her equitable interest in the property.
It did not purport to divest Lomax of the fee, nor to revest Mrs. Smyth therewith. It did fix the amount of indebtedness and direct the sale of the property for its satisfaction, and there is no ground for the contention that this in effect transferred the fee to Mrs. Smyth. But the point is not material in our view of the case, for it is conceded that by the execution of the instrument in 1879 by Mrs. Smyth to Lomax, whether it be denominated a release or quitclaim deed, there was passed or released to him whatever interest she retained in the lands. See Baxter v. Pritchard, 122 Iowa 590, 98 N.W. 372.
For the purpose of this case, it may be conceded, without deciding, that the inchoate distributive share of her husband, George B. Smyth, was not divested by these transactions, and that he was entitled to assert the same upon the death of his wife April 21, 1903. No claim thereto in fact was asserted until April, 1908, and, though the briefs of counsel have taken a wide range, it will not be necessary to consider any of the questions argued other than the plea of the statute of limitations.
Chapter 152 of the act of the 31st General Assembly was approved March 23, 1906, and became effective July 4th following. It is entitled "An act providing limitations for the commencement of actions, relative to real property, additional to chapter two (2) title eighteen (18) of the Code," and section 1 thereof enacts that:
In all cases where the holder of the legal title to real estate situated within this state, prior to the first day of January, 1885, conveyed said real estate or any interest therein by deed, mortgage, or other conveyance, and the spouse failed to join therein, such spouse or the heirs at law, devisees, grantees, or assigns of such spouse shall be barred from recovery unless suit is brought therefor within one year after the taking effect of this act. But in case the right to such distributive share has not accrued by the death of the spouse making such conveyance, then the one not joining is hereby authorized to file in the recorder's office of the county where the land is situated, a notice with affidavit, setting forth affiant's claim together with the facts upon which such claim rests, and the residence of such claimant; and if such notice is not filed within two years of the taking effect of this act, such claim shall be forever barred. Any action contemplated in this section may include lands situated in different counties, by giving notice thereof as provided by section thirty-five hundred and forty-four (3544) of the Code.
It will be noted that the facts recited bring the causes of action pleaded by Collier squarely within the terms of this statute. Appellants contend, however, that Smyth was insane at the time of his wife's death, and so continued until the time suits were begun, and for this reason the above statute was tolled. As to whether he was insane at the time of and for several years subsequent to his wife's death the evidence is in sharp conflict, but, conceding him to have been insane during this period, it does not follow that the statute was tolled by reason of such disability. The act contains no exemption in favor of insane persons, and it is elementary that, save when otherwise provided by the Legislature, no such exemption exists. Vance v. Vance, 108 U.S. 514 (2 S.Ct. 854, 27 L.Ed. 808); Campbell v. Long, 20 Iowa 382; Shorick v. Bruce, 21 Iowa 305.
It is argued, however, that, though the act specifies no exemptions owing to disabilities, it was so incorporated into the chapter mentioned that section 3453 became applicable thereto. That section provides that: "The times limited for actions herein, except those brought for penalties and forfeitures, shall be extended in favor of minors and insane persons, so that they shall have one year from and after the termination of such disability within which to commence said action." By its language this section is expressly limited to actions "herein;" that is, those mentioned in the chapter of which it forms a part. That chapter consists of section 3447 fixing the periods of limitation in the several kinds of actions enumerated in eight subdivisions, sections 3448 and 3449 stating when certain actions accrue, section 3450 defining the commencement of an action, sections 3451, 3452, 3454, 3455, and 3458 with respect to computation and extension of time, and section 3456 concerning the revivor of a cause of...
To continue reading
Request your trial