Fullerton v. Hughes

• Decision Date: 09 June 1910
• Citation: 126 N.W. 697
• Parties: FULLERTON v. HUGHES ET UX.
• Court: Iowa Supreme Court

126 N.W. 697

FULLERTON

v.HUGHES ET UX.

Supreme Court of Iowa.

June 9, 1910.

Appeal from District Court, Washington County; W. G. Clements, Judge.

Action to recover possession of real estate and to quiet title. The defendants are husband and wife. Defendant Joseph Hughes filed an answer denying that he was in possession of the premises in question. Defendant Annie Hughes admitted her possession, and set up a claim of right to possession, in that the same constituted the homestead of herself and codefendant husband, and that she had never relinquished such right. There was a decree for the plaintiff, and the defendant Annie Hughes appeals. Appeal dismissed.P. J. Hanley, for appellant Annie Hughes.

C. A. Dewey, for appellee.

EVANS, J.

The appellee-plaintiff has filed a motion to dismiss the appeal on various grounds. The grounds are such as to render necessary a consideration of the entire record for their determination. For that reason, the motion was ordered submitted with the case. One of the grounds of such motion is that the appellant Annie Hughes has not served a notice of appeal upon her codefendant, nor has he joined in the appeal. This alleged defect is made to appear by appellee's amended abstract, to which the appellant has not responded nor has the record been certified. We must therefore take the statement of appellee's amended abstract as true.

We have frequently held that the failure of an appellant to serve notice of appeal upon co-parties is not necessarily jurisdictional, and that the appellant may yet be heard upon such questions as do not affect the rights of the co-parties who have not been made parties to the appeal. Our first inquiry is therefore directed to the question whether we could grant the appellant the relief sought by her in the absence of jurisdiction over her codefendant. Stating the facts of the case briefly in the most favorable light for appellant, her husband, Joseph Hughes, became the equitable owner of the particular real estate in question by purchase from one Orris in March, 1906. The title, however, was not conveyed to Joseph but was conveyed at his request to his brother, C. B. Hughes, who had in fact no beneficial interest therein. Joseph Hughes and wife, the defendants herein, immediately went into possession of the property, which consisted of a house and two acres of ground, and occupied the same as their home. In May, 1907, C. B. Hughes and his wife executed a form of deed of the property in question, leaving the name of the grantee blank therein, and delivered such deed in such form to Joseph. In 1908 Joseph sold the property to one McCready, and undertook to convey the same to him by the delivery of the blank deed which he held from his brother, and McCready inserted his own name as grantee in the blank space therein. Afterwards McCready sold to Fullerton, the plaintiff herein, and undertook to convey by delivering to Fullerton the same deed, having first erased his own name therefrom as grantee, and inserted the name of Fullerton in lieu thereof. Thereupon Fullerton and Joseph Hughes entered into a contract of lease whereby Fullerton leased the property to Hughes until March 1, 1909. The appellant Annie Hughes did not sign such lease, although it is claimed by plaintiff-appellee that she knew of it and assented to it. At the expiration of the lease, Joseph Hughes...