Hines v. Horner

• Decision Date: 24 October 1892
• Citation: 86 Iowa 594,53 N.W. 317
• Parties: HINES ET AL. v. HORNER ET AL.
• Court: Iowa Supreme Court

86 Iowa 594

53 N.W. 317

HINES ET AL.

v.HORNER ET AL.

Supreme Court of Iowa.

Oct. 24, 1892.

Appeal from district court, Story county; D. R. HINDMAN, Judge.

Action for the partition of certain lands, and to set aside a deed executed by plaintiff George Yazel to his sons, David and Joseph Yazel, of a certain interest in the lands sought to be partitioned. Decree for plaintiffs, and defendants David and Joseph Yazel appeal.E. H. Addison and W. G. Harvison, for appellants.

J. T. Martin, for appellees.

KINNE, J.

1. This action was begun to partition certain lands in which the plaintiffs claimed an interest. It was alleged, among other things, that one of the plaintiffs, George Yazel, who was a man over 80 years old, in feeble condition, and unable to read and write, was induced by fraud and deceit practiced upon him by his sons, David and Joseph, to execute a deed to them of all his interest in the land in controversy, they pretending to enter into a contract to support their father; and he was thus induced to sign a deed to the land, supposing it was a contract for his support. That his said sons (defendants) conspired and confederated together to gain said conveyance by fraud and deceit, and the same was thus procured. That because thereof, and because no consideration was paid therefor, and for the reason that defendants have not supported said plaintiff, plaintiff asks that the deed be set aside, and avers that he still owns his interest in said land. Defendants deny the allegations referred to, and aver that the deed given them by their father was for a consideration, being a contract in writing, conditioned for the care and support of George Yazel during his lifetime by said defendants; that plaintiff knew the contents of the deed and its import; that they are now, and always have been, willing to comply with the terms of their contract. Other necessary allegations appear in the petition and answer.

2. Appellants contend that there is a misjoinder of actions, in this: that this action is brought for the partition of certain lands, and there is joined therewith an action in behalf of one of the plaintiffs and against two of the defendants to set aside a deed touching an undivided interest in the property in controversy. No objection was made to the claimed mis-joinder in the court below, and hence we cannot consider it. 1 McClain's Dig. p. 48, § 145; Elliott's App. Proc. §§ 470, 481.

3. In our judgment, we need not enter into a discussion of the merits of this case. The relief asked, so far as the setting aside of the deed from George Yazel to the defendants David and Joseph Yazel was concerned, was based only on the claim that the conveyance was procured by them by fraud and deceit practiced upon their father. The court below expressly found that “no fraud, deceit, or undue influence was used in procuring the said George Yazel's signature to the said deed or contract;” and the evidence fully sustains the...