Finnegan v. Campbell

• Decision Date: 10 March 1888
• Citation: 74 Iowa 158,37 N.W. 127
• Parties: FINNEGAN v. CAMPBELL.
• Court: Iowa Supreme Court

74 Iowa 158

37 N.W. 127

FINNEGAN

v.CAMPBELL.

Supreme Court of Iowa.

March 10, 1888.

Appeal from district court, Cerro Gordo county; JOHN B. CLELAND, Judge.

Proceedings to recover for permanent improvements on real estate, under the statute giving relief to occupying claimants. The court, on the ground that the defendant, Francis Campbell, had failed to show color of title, directed the jury to find for the plaintiff, Thomas Finnegan, and defendant appeals.Blythe & Markley, for appellant.

McConlogue & Miller, for appellee.

SEEVERS, C. J., ( after stating the facts as above.)

In April, 1885, the plaintiff commenced an action of right against the defendant, to recover possession of the N. E. 1/4 of section 18, township 94, range 19, in Cerro Gordo county. The defendant answered the petition, alleging ownership in himself. In January, 1887, judgment was rendered for the plaintiff, and on the 8th day of February thereafter the defendant filed a petition, claiming to recover for improvements made in good faith under color of title. It is stated in the petition, claiming under the occupying claimant law, that the defendant purchased the real estate of the plaintiff through his agent, and that he had paid the taxes on the said land in March, 1884, and that plaintiff had not offered to return the same. The improvements made were sufficiently described. The plaintiff denied the allegations of the petition, and pleaded that the plaintiff in September, 1884, had commenced an action for rent due for the use and occupancy of the premises; that the defendant denied the allegations of the petition, and pleaded the same contract of purchase as a defense to such action as is pleaded in the present proceeding; and that the plaintiff was successful in such former action; and that the defendant is thereby estopped from pleading the same matter in this proceeding. There was evidence tending to show that one Dougherty, as agent for the plaintiff, sold to the defendant the land in controversy, and that he, as such agent, entered into a written contract which provided that, upon compliance with the terms and conditions thereof on the part of the defendant, the plaintiff agreed to convey the real estate to the defendant. The evidence also tended to show the defendant occupied said premises under the contract, and made permanent improvements thereon, and that he in March, 1884, paid the taxes due thereon. There is no evidence which tends to show that the plaintiff offered to repay said taxes. There is also evidence which tends to show that the plaintiff never repudiated the authority of Dougherty to sell the land, or execute the written contract; on the contrary, there is evidence which tends to show the plaintiff, for a time, recognized the possession of the defendant under the contract. The grounds on which it was held the defendant was not vested with an equitable title do not certainly appear; but the probabilities...