Goslee v. Tearney

• Decision Date: 05 December 1879
• Citation: 52 Iowa 455,3 N.W. 502
• Parties: ALPHA GOSLEE, APPELLEE, v. THOMAS TEARNEY AND OTHERS, APPELLANTS.
• Court: Iowa Supreme Court

52 Iowa 455

3 N.W. 502

ALPHA GOSLEE, APPELLEE,

v.THOMAS TEARNEY AND OTHERS, APPELLANTS.

Supreme Court of Iowa.

Filed December 5, 1879.

Appeal from Jasper circuit court.

Action for partition. The land was owned originally by one George Parsons, who died intestate. The plaintiff avers that he owns 2-27 of the land, and that each of the defendants owns 2-27 except Thomas Tearney, who owns 17-27. The defendant Crabtree denies that the plaintiff owns any portion of the land, and avers that he (Crabtree) owns the whole. The court found that the defendant Thomas Tearney owned 21-33 of the land, and that the other defendants and the plaintiff owned each 2-33, and rendered judgment accordingly. The defendant Crabtree appeals.Smith & Wilson and Barcroft, Given & McCaughan, for appellant.

S. N. Lindley and S. C. Cook, for appellee.

ADAMS, J.

The defendant Crabtree claims to have a tax title to the land. The land appears to have been sold at tax sale in November, 1867, to one Callanan, who acquired a tax deed, and conveyed to Crabtree. The regularity of the sale is not questioned, but the plaintiff insists that five years having elapsed from the time of completed sale, Crabtree is barred from asserting any rights in the premises. Neither Crabtree nor Callanan, under whom he claims title, instituted any action to recover possession, and neither of them took possession during the five years. It does not follow, however, that Crabtree is necessarily barred. If the land was unoccupied during the five years, or even at the expiration of the five years, the holder of the tax title is not barred. The holder of the tax title has constructive possession of the land if it is unoccupied, and such possession obviates the necessity of taking actual possession or of bringing an action to recover possession. Moingona Coal Co. v. Blair, 1 N. W. REP. 768, (Iowa, 282.) It is incumbent, therefore, upon the plaintiff, who sets up the bar, to show not only that five years elapsed from the time of completed sale before Crabtree or Callanan took possession or brought an action to recover possession, but that one or more of the original owners were in possession at the time the five years expired. As to what the fact was the evidence leaves us in some doubt. The five years expired in November, 1875. As against the holder of the tax title the five years began to run from the time when he was entitled to a deed, which was in November, 1870. Hintrager v. Hennessey, 46...