Grether v. Clark

• Decision Date: 06 October 1888
• Citation: 39 N.W. 655,75 Iowa 383
• Parties: GRETHER ET AL. v. CLARK ET AL.
• Court: Iowa Supreme Court

75 Iowa 383

39 N.W. 655

GRETHER ET AL.

v.CLARK ET AL.

Supreme Court of Iowa.

October 6, 1888.

Appeal from district court, Boone county; JOHN L. STEVENS, Judge.

Action in equity. The petition contained a general prayer for relief upon the facts alleged, which are stated in the opinion. The judgment was for defendants, and plaintiffs appealed.Hull & Bicksler, for appellants.

Crooks & Jordan, for appellees.

REED, J.

Plaintiff Anna M. Grether is the widow, and the other plaintiffs are the children and heirs at law, of John Grether, who died at Columbus, Ohio, in 1874. Prior to the 18th day of May, 1868, he was the owner of a tract of land in Boone county, and on that day he sold and conveyed the same to Margaret D. and O. J. Boyd, who gave him a mortgage on the property to secure a portion of the purchase money. They subsequently gave a second mortgage to John P. Manny & Co. On the 25th of March, 1870, they sold and conveyed the premises to Hortense E. Soward, who, on the 15th of February, 1873, sold and conveyed to defendant Clark. He afterwards conveyed to Beck, but there was a subsequent reconveyance to Clark, who held the title when this suit was instituted. After the conveyance to Soward, but before Clark purchased, Grether brought suit for the foreclosure of his mortgage, making the mortgagors only parties. He recovered judgment for the amount of the debt, and a decree of foreclosure, under which the land was sold, he being the purchaser, and a sheriff's deed was subsequently executed to him. Immediately after his purchase Clark took possession of the premises, and continued in possession until the sale to Beck, and Beck was in possession until the reconveyance to Clark, since which time the latter has been in possession. The mortgage to John P. Manny & Co. was foreclosed, and defendant Clark bought the premises at the sale, and obtained a sheriff's deed thereunder in 1875; but neither plantiffs nor John Grether were made parties to the foreclosure proceeding. This suit was instituted in August, 1885. Soon after Grether's death an administrator of his estate was appointed by the probate court in Ohio, and it has been fully administered. At the time of his death his children were all minors, and two of them had not attained majority when the suit was instituted.

The defense relied upon is the statute of limitations. It will be observed that the grantees of the mortgagors had been in possession of the premises for more than 10 years when the suit was instituted, and that possession was actual, exclusive, and continuous, and that possession is relied upon as creating a bar to the action. But the occupancy was under an absolute right of possession. Under our statutes, the title and right of possession is in the mortgagor, and they continue until divested by a sale and deed under foreclosure proceedings. Hodgdon v. Heidman, 66 Iowa, 645, 24 N. W. Rep. 257;Green v. Turner, 38 Iowa, 112;Gower v....