Griffin v. Turner
| Decision Date | 10 September 1888 |
| Citation | 39 N.W. 294,75 Iowa 250 |
| Parties | GRIFFIN v. TURNER et al |
| Court | Iowa Supreme Court |
Decided May, 1888
Appeal from Clay District Court.--HON. GEORGE H. CARR, Judge.
ACTION in equity to quiet the title to real estate. After a trial by the court the petition of plaintiff was dismissed, and he appeals.
AFFIRMED.
Hughes & Chamberlain, for appellant.
Parker & Richardson, for appellees.
Plaintiff claims to be the owner in fee-simple of the south half of the southeast quarter of section 6, township 94, range 35, in Clay county. This land was entered on the twenty-fifth day of May, 1857, by Jane Bruce. On the first day of December, 1859 a patent therefor was issued to her assignee, Edward A. Fuller, but never recorded. On the twenty-third day of July, 1884, Ed. Fuller and wife executed a deed to plaintiff for the consideration of twenty-five dollars, "conveying their interest in and to" the land in question. This was never recorded. The defendant Mary T. Turner claims to own the land by virtue of a treasurer's deed, executed to her pursuant to a sale made on the fifth day of November, 1877, for the delinquent taxes of 1876. This deed was recorded on the seventh day of April, 1881. The defendant Thomas F. Turner is the husband of his co-defendant. He alleges that he purchased the land in 1866, in good faith, and has ever since paid all taxes thereon, believing that he was the owner; that after his purchase he discovered a defect in his chain of title as recorded, and that to perfect his title of record, and cure defects therein, he permitted the land to go to tax sale, and bid it in, and afterwards paid all taxes thereon.
I. The evidence shows that on the fifth day of April, 1886, the plaintiff caused to be hauled onto this land two loads of lumber. On the next day carpenters erected thereon a building about twelve by sixteen feet in size, and eight feet high. It was built on blocks, and leveled up, but had neither door nor window. The roof was made of common lumber, and the sides were of the same material. There was no floor. One witness states that the building was adapted for use as a dwelling or stable. After this building was erected, and during the same month, plaintiff caused three acres of land to be broken. Prior to April 5, 1886, the land was unbroken prairie without improvements of any kind, and had never been in the actual possession of any one. Plaintiff insists that defendants are barred from now asserting title under the tax deed by reason of the provisions of section 902 of the Code. The defendants have resided in Illinois since 1866. In 1868 the husband visited Clay county, Iowa, and inspected the land. He redeemed it from a sale for the delinquent taxes of 1864-65, and paid all subsequent taxes to and including those for 1885, although those for 1876 were paid through the medium of a tax sale. Turner discovered the defect in his title, and in 1870 corresponded with Fuller in regard to it. In this correspondence Fuller stated that he believed he had purchased a parcel of land in Iowa, from Mrs. Bruce, but, if so, he had sold it. In April, 1877, Turner asked Fuller by letter for a quit-claim deed, but was refused on the ground, that if he had deeded the land once, he could not safely do so again. Fuller's recollection of the land was indistinct. He recalled a trade with Mrs. Bruce involving land, but he seemed to recollect nothing more. He was impressed with the belief that his interest in the land had been conveyed, and made no claim to it; on the contrary, disclaimed any interest in it. Some objection is made to this correspondence, but we think it is competent to show what claim plaintiff's grantor was then making to Turner. The correspondence clearly shows that Fuller made no claim to the land. Turner could not, therefore, have maintained any action against him. Plaintiff obtained a quit-claim deed from Fuller in July, 1884, but, so far as is shown, asserted no title under it, and did not take possession of the land until two days before the period of five years from the date of the recording of the tax deed expired. The evidence certainly justifies us in concluding that neither Fuller nor plaintiff made any claim to the land between the year 1866 and the fifth day of April, 1886, of which defendants were required to take notice. It is of course probable, and no doubt true, that plaintiff intended to assert a claim of ownership from the time he obtained his deed, and it may be that he believed himself to be the owner. But he withheld his deed from the record, and, after he had obtained it, permitted the defendants to pay the taxes of 1884 and 1885. Whether his motive in pursuing this course was proper or not is immaterial to the issues in this case. Some years before the tax deed was recorded, he had corresponded with Turner in regard to this land, and by that means had knowledge of such facts as charged him with notice of defendants' rights. Appellant insists that by reason of his having taken actual possession within five years from the recording of the deed, the defendants are estopped from claiming under their tax deed; citing Barrett v. Love, 48 Iowa 103; Executors of Griffith v. Carter, 64 Iowa 193, 19 N.W. 903; Barrett v. Holmes, 102 U.S. 651, 26 L.Ed....
To continue reading
Request your trial