Goodnow v. Litchfield
| Decision Date | 23 April 1884 |
| Citation | 19 N.W. 226,63 Iowa 275 |
| Parties | GOODNOW v. LITCHFIELD |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.
ACTION in chancery for an accounting and to recover for certain sums of money paid by plaintiff in satisfaction of taxes levied upon certain lands, the titles whereof he, at the time, in good faith claimed, but which, by certain adjudications of the courts, were afterwards declared to be in defendant. The petition also claims a lien upon the lands, and its enforcement for the sum found due plaintiff. Upon the final hearing of the cause, a decree was entered in favor of plaintiff for the amount of the taxes paid, with interest from the day of the commencement of this action, and establishing a lien which shall be binding upon each separate tract of land to the extent of the taxes paid thereon. From this decree plaintiff appeals. It is stated in the argument of counsel that defendant perfected a cross appeal, but the abstract and amended abstract upon which the cause is submitted to this court do not show or aver such cross appeal. The pleadings and facts of the case appear in the opinion.
REVERSED.
George Crane, for appellant.
C. H Gatch, for appellee.
I.
The plaintiff alleges in his petition that in 1863 the Dubuque & Sioux City Railroad Company conveyed certain lands describing them, all situated in Webster county, to the Iowa Homestead Company, a corporation organized under the laws of this state, which, in good faith, and in the belief that it held the title to the lands, paid the taxes assessed thereon from the date of the conveyance to the year 1872, amounting to the sum of $ 3,819.45. These taxes were paid as they became due for the years intervening between the dates named. It is averred that the defendant was the real owner of the lands, of which the Homestead Co. had no knowledge or notice until the year 1873; that defendant has paid no part of the taxes; that the county refuses to refund to plaintiff any part of the sums paid; and that defendant, as the legal owner of the lands, was justly bound to pay the taxes. The petition alleges and shows that the Iowa Homestead Company has assigned and transferred to plaintiff its claim and cause of action arising upon the payment of the taxes. The relief prayed is for an accounting and a decree for the amount found thereon to be due plaintiff, which shall be made a lien upon the lands, and for general relief.
The answer of defendant admits the allegations of the petition as to the conveyance of the lands to the Homestead Company and the title thereof being vested in defendant, and that she has not paid the taxes which plaintiff seeks to recover. Other allegations of the petition are denied. As a defense to the action, the answer pleads a prior adjudication in an action between the Homestead Co., as plaintiff, and the defendant and her grantor, the Des Moines Navigation & Railroad Co., and others, as defendants, finally determined by the supreme court of the United States in 1872. As further defenses, the answer sets up the statute of limitations, and alleges that all payments were made by plaintiff's assignee without the request or consent of defendant. An amended answer shows that, during all of the time in which the taxes in question were levied and paid, plaintiff's title to the lands was denied by the state of Iowa and the United States, and it was claimed that the ownership of the lands vested in others under certain grants, and that, even subsequent to the decision of the United States Supreme court in the case of Wolcott v. The Des Moines Navigation & Railroad Co., 5 Wall. 681, 18 L.Ed. 689, whereby the title of the lands was settled in defendant's grantor, the United States continued to claim that the title was transferred by other grants, and withheld certification of the lands under the grant by virtue of which defendant claims, whereby defendant has been deprived of the possession of the lands, which have been occupied by adverse claimants, whereby the defendant has suffered loss. Defendant, in an amended answer, alleges that plaintiff is not the real party in interest, the cause of action not having been transferred to him. Other allegations of the pleadings need not be recited.
The death of defendant, Grace H. Litchfield, having been suggested, the administrator of her estate, Edwin C. Litchfield, was substituted as defendant, and as such appeared in the case. This action is triable de novo in this court.
II. We will proceed to the discussion of all the questions raised by the counsel of the respective parties, considering first those presented on the part of defendant. In view of the fact that we decide all questions discussed in the brief for defendant, it is not important to inquire whether there was a cross appeal by that party. The appeal by plaintiff brings the case here for trial de novo, upon which all questions made by the respective parties may be decided.
It is first insisted that it is shown that plaintiff is not the real party in interest as to the claim involved in this suit, and is not, therefore, authorized to prosecute this action. It is shown by the amended abstract that this objection was raised by demurrer to the petition, and we also find that the objection was pleaded as a defense by the answer. It is not important in what manner the objection was first raised. It may be considered, whether raised in one way or the other, and it is not insisted that the objection was waived by pleading over after demurrer. It is based upon the language of the assignment of the claim, executed by the Homestead Co. to plaintiff. The instrument, by proper words, transfers and assigns the cause of action to plaintiff, and thereupon follows this language: "In consideration whereof the said E. K. Goodnow hereby agrees to exercise reasonable care and diligence to enforce said claims, demands or rights of action, and, after deducting all costs and expenses in so doing, to hold the proceeds or amount collected in trust for the use and benefit of the parties owning the same." It is insisted by counsel for defendant that plaintiff acquired under this instrument nothing more than the power and right to collect the claims, and is not clothed with the title thereof. This is clearly an error. The assignment is absolute in form, vesting plaintiff with the title and property in the claims. The language above quoted clearly shows, however, that he is to hold the claims as a trustee. It cannot be doubted that a chose in action may be transferred to a trustee, and our statute, Code § 2544, clothes a trustee with the right and power to prosecute an action thereon in his own name. See Cottle v. Cole, 20 Iowa 481; Rice v. Savery, 22 Iowa 470.
III. Upon the application of plaintiff, the venue of the case was changed. The persons making affidavit, as required by the statute, state "that they are not related to the plaintiff in the action nearer than the fourth degree, nor do they, nor any of them, stand in the relation of servant, agent, or employe of said plaintiff, nor are they in any manner interested in the result or issues of this action." It is now insisted that this affidavit does not comply with the requirements of Code, § 2590. In support of this position, Fairburn v. Goldsmith, 58 Iowa 339, 12 N.W. 273, is cited. The affidavit in this case differs from the one held insufficient in that decision, which is construed to show that the three affiants are not collectively related to the applicant nearer than the fourth degree. In this case, the affiants collectively declare that they are not so related. The language used would not be true if one of them were in the degree of relationship mentioned. In the other case, the decision regards the persons as referred to by the affidavit collectively, and holds that the allegation of the affidavits would be true if one of them were related within the fourth degree, a very doubtful and nice distinction, to say the least of it. We think the distinction between the language of the affidavit in this case and the one interpreted in the other is obvious. We are not inclined to extend the rule of that case to language other than that to which it is applied in the decision.
IV. It is next urged by counsel that the action is barred by the statute of limitations. This claim is based upon the position that the title of the land, upon which the taxes paid by plaintiff were levied, was finally settled in 1866 by the supreme court of the United States, in Wolcott v. The Des Moines Nav. & R. Co., 5 Wall. 681, 18 L.Ed. 689. But this court has held in cases involving similar facts and the title to lands resting upon the same grant under which defendant claims, that the title was not finally settled until 1873, by the decision of the United States Supreme court in Homestead Co. v. Valley Railroad Co., 17 Wall. 153, 21 L.Ed. 622. See Goodnow v. Stryker, 62 Iowa 221, 14 N.W. 345; Goodnow v. Moulton, 51 Iowa 555, 2 N.W. 395. The question raised by counsel must be regarded as settled by these decisions. It is held in Goodnow v. Stryker, supra, that the statute of limitations did not begin to run until December, 1872, upon the decision of Homestead Co. v. Valley Railroad Co., supra.
V. It is argued by counsel for defendant that the evidence supports the defense of...
To continue reading
Request your trial