Cummings v. Browne

• Decision Date: 15 June 1883
• Citation: 16 N.W. 280,61 Iowa 385
• Parties: CUMMINGS ET AL. v. BROWNE
• Court: Iowa Supreme Court

16 N.W. 280

61 Iowa 385

CUMMINGS ET AL. v. BROWNE

Supreme Court of Iowa, Des Moines

June 15, 1883

Appeal from Buchanan Circuit Court.

ACTION to quiet the title of certain lands. The defendant by his answer and a cross bill set up title to the land claimed by plaintiffs. There was a decree quieting the title of a part of the land in plaintiffs, and the title of the other part in defendants. Plaintiffs appeal.

REVERSED.

E. E Hosner, for appellants.

C. E Ransier, for appellee.

OPINION

BECK, J.

I.

The plaintiffs are the heirs at law of C. W. Cummings, who died seized of blocks 9, 10, 11, and 12 of Cummings' Addition to the city of Independence, and the northeast quarter of the northeast quarter of the southwest quarter of section thirty-five, township eighty-nine, range nine, west. The lands lie adjacent, as will appear from the plat which will hereafter be produced. Plaintiffs claim title to the lands through their father, C. W. Cummings. The defendant, in his answer and cross-bill, claims title to the lands under conveyances made by Cummings and his grantees, all sufficiently set out in the agreed statement of facts, which we find necessary for a clear understanding of the case to reproduce in this opinion. The claim of defendant probably covers only the land laid off into city lots. He alleges that it was the intention of the parties to these deeds to convey all the lands claimed by him. He also claims the lands under a tax title. The facts and proceedings upon which it is based are set out in the agreed statement of facts. defendant further relies upon payment of taxes and the possession of the land, which, under the statute of limitations, will bar plaintiffs' action.

The cause was submitted for trial upon the following agreed statement of facts, admission of record, and other evidence.

"First. It is agreed that the plaintiffs are the sole heirs of C. W. Cummings, deceased.

"Second. That on or about January twelfth, 1857, C. W. Cummings was the owner of the north half of the north half of southwest quarter of section thirty-five, township eighty-nine, range nine, west fifth P. M., in Buchanan county, Iowa, and on said date the said C. W. Cummings platted the west thirty acres of said tract of land into lots and blocks, and designated said plat as Cummings' Addition to Independence, Iowa.

"Third. That on August 21, 1857, the said C. W. Cummings and wife executed their general warranty deed to O. H. P. Roszell, containing the following description of lands: 'The west one-half of the north half of the north half of the southwest quarter of section thirty-five, in township eighty-nine, range nine, west of the fifth P. M., Iowa, including Cummings' addition to the village of Independence, Iowa.'

"Fourth. That on or about September 1, 1857, the said O. H. P. Roszell and wife conveyed, by general warranty deed, to Barnes Gilbert, the same land, and by the same description, as was conveyed by C. W. Cummings to O. H. P. Roszell.

"Fifth. That on the seventeenth day of July, 1877, in consideration of $ 300, the heirs of Barnes Gilbert, by a quit claim deed, conveyed to H. P. Brown the land described as follows:

"The northeast quarter of northeast quarter of southwest quarter of section thirty-five, township eighty-nine, range nine, also blocks 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 in Cummings' Addition to Independence, Iowa, all in Buchanan county, Iowa.

"Sixth. That C. W. Cummings died in the year of 1862.

"Seventh. That on October 2, 1876, at the tax sale in Buchanan county, Iowa, the treasurer of said county sold all of the lots in blocks 9, 10, 11 and 12 in said Cummings' Addition to Independence to H. P. Browne, for the taxes due thereon for the year 1875, and said Browne received the certificates of sale therefor. That said Browne transferred said certificates without consideration to one S. Tabor, and the said S. Tabor, on the second day of August, 1880, served a notice of the expiration of redemption upon H. P. Browne, in the following words:

"'To H. P. Browne: You are hereby notified that at the tax sale of lands of Buchanan county, Iowa, held on the second day of October, 1876, H. P. Browne purchased the following described premises, to-wit: Lots 1, 2, 3, 4, 5, 6, 7, 8, in block 9, and lots 1, 2, 3, 4, 5, 6, 7, 8, in block 10, and lots 1, 2, 3, 4, 5, 7, 8, in block 11, and lots 1, 2, 3, 4, 5, 7, 8, in block 12, all in Cummings' addition to Independence, Iowa; that the certificates of such sale have been assigned to me; that the right of redemption will expire and a deed thereof be made, unless redemption from such sale be made within ninety days from the completed service of this notice.

"'Independence, Iowa, August 2, 1880.

"'STEPHEN TABOR.

"'I hereby accept due, legal and timely service of this notice, this second day of August, 1880.

"'H. P. BROWNE.'"

"'Affidavit of service made by S. Tabor, August 2, 1880, and notice and affidavit filed with county treasurer, August 2, 1880, and that Tabor, on August 12, 1881, obtained a treasurer's deed for all of said lots in blocks 9, 10, 11 and 12, in Cummings' Addition, and on September 12, 1881, said Tabor by special warranty deed conveyed said blocks 9, 10, 11 and 12 to H. P. Browne, without consideration.'

"Eighth. That at the time of said tax sale of October 2, 1876, the said premises were assessed to Barnes Gilbert.

"Ninth. That the only notice of the expiration of non-redemption from the tax sale of 1876, and upon which said deed was executed by the treasurer, was the notice above set out in this agreement of facts.

"Tenth. That all of the premises described in the second paragraph of this agreement were covered with young, growing timber, and no one lived upon said premises, cultivated or used them, nor were they enclosed except as stated in paragraph eleven hereof.

"Eleventh. That the said H. P. Browne, after he obtained the quit-claim deed from the heirs of Barnes Gilbert, caused the underbrush to be cut out, and the trees to be trimmed up, in the year 1878, upon the land in Cummings' Addition.

"Twelfth. That Barnes Gilbert paid all the taxes upon all the lots in blocks 9, 10, 11 and 12, Cummings' Addition, from the year 1860 up to the year 1875, for which year they were sold for taxes as aforesaid.

"Thirteenth. That all the lots in blocks 9, 10, 11 and 12, were taxed and assessed for taxation to H. P. Browne at the time the service of the notice of redemption by S. Tabor, August 2, 1880."

In addition to the agreed statement of facts, it was also admitted of record that Barnes Gilbert, during his lifetime, was a resident of Vermont, and never lived in the state of Iowa, and that he died in 1868.

There was evidence showing that Barnes Gilbert paid the taxes in controversy from 1858 to 1874, and that Browne paid the taxes subsequent to the sale under which he claims. At the close of the evidence, the defendant entered a disclaimer of interest or title in...