Kerr v. Yager
| Decision Date | 13 December 1912 |
| Parties | JOHN D. KERR and SADIE KERR, Appellants, v. CHRIS YAGER, ANNIE YAGER, ELLA SAPP NORMAN, GEO. NORMAN, NETTIE SAPP MILLSPAUGH, ANNA SAPP CLEVELAND, JAMES CLEVELAND, DAISY SAPP ALDRICH, C. LESTER ALDRICH and MARY SAPP, Appellees |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--HON. A. B. THORNELL, Judge.
ACTION for the partition of certain real estate. Defendants Yager and Yager claimed to be the owners of the land through mesne conveyances from James H. House, now deceased, from whom all parties trace their title. Various other issues were tendered, and upon trial to the court a decree was rendered dismissing plaintiff's petition, and quieting the title to the land in defendants Yager and Yager. Plaintiff's appeal.
Affirmed.
J. S Dewell, for appellants.
C. W Kellogg, for appellees Yager and Yager.
Clem F Kimball, for other appellees.
James H. House died some time in the year 1888, seised of the record title to the land in controversy. He had five children, to wit: William, Chas., and Allen, sons, and Jannet, who afterwards married William Eddie, and Eliza, who afterwards married Abraham Sapp, daughters. Prior to the death of James, Jannet Eddie died, leaving three children, Chas., Winnie, who married plaintiff John D. Kerr, and Lillie, who afterwards married John Brownrigg. Winnie Kerr died prior to the demise of James House, leaving one daughter, Sadie Kerr, a minor, who is also one of the plaintiffs, and the two plaintiffs claim to own an undivided one-fifteenth of the real estate. Eliza Sapp died before the death of her father, leaving six children surviving, and these, with their respective husbands and wives, are defendants, and they each claim a one-thirtieth interest in the real estate. William, Charles, and James House, sons, quitclaimed their interest in their father's property to the other son, Allen, and thereby Allen became vested of an undivided three-fifths of said real estate. And on July 27, 1904, Allen House, his wife joining, conveyed their interest to defendants Yager and Yager. In October of the year 1906 Chas. Eddie and wife and Lillie Brownrigg and husband conveyed their interest in the land to plaintiff Kerr, and it is claimed that he thereby became the owner of two-fifteenths of said estate. In November of the same year George Sapp conveyed his interest to one W. A. Smith, who, in turn, conveyed the same to plaintiff Kerr, by reason of which Kerr became the owner of an undivided one-sixth of the estate. Defendant Annie Yager is the daughter of Allen House, and Chris Yager is her husband. Defendants Yager and Yager claim title to all the property in controversy in virtue of a warranty deed for the same to them executed by Allen House and wife on July 27, 1904. They also pleaded that James H. House during his lifetime and some time prior to the year 1876 sold and transferred the property to his son Allen by oral contract, and that, pursuant to such sale, Allen took possession of the land, made improvements thereon, and ever thereafter paid the taxes on the premises. They also procured an assignment from Allen House in the following terms:
Having sold to my daughter, Anna Yager, and her husband, Chris Yager, lot 6 and all of lot 5, except the west eleven acres thereof in section No. 18, township No. 78, range 45, Harrison county, Iowa and given the said Anna Yager and Chris Yager a warranty deed to the said land, I hereby sell and assign to said Anna Yager and Chris Yager, my claim against the several plaintiffs and defendants in the suit of John D. Kerr et al. vs. Anna Yager et al., commenced in the district court of Harrison county, Iowa for the January term, 1907, the said taxes having been paid on said land by me under claim of ownership, believing that I was the owner of the land under oral sale and gift from my father, James H. House. And I hereby authorize my said daughter and her husband, Anna Yager and Chris Yager, to collect said taxes and the interest thereon from the several claimants of said property in said suit, if it shall be found by the court that the plaintiffs and defendants are entitled to any part of said land, and authorize them to claim the same as an offset against any claim of the plaintiffs or defendants in said suit.
Dated Missouri Valley, Iowa this 29th day of December, 1906.
Allen his X mark House.
And after averring that Allen paid taxes on the land to the amount of $ 275.81, they asked to be protected in any event to the amount of these taxes which should be charged proportionally against any adverse interest in the land. They also pleaded that they went into the possession of the land some time in the year 1890 or 1891 under an arrangement with Allen House, believing that they were the owners thereof, and that they have ever since been in the continuous, open and adverse possession of the property. They further pleaded the adverse possession of their grantor, Allen House, for the full statutory period, both before and after the death of his father. Repleading the same facts, they asked that their title to all the premises be established and quieted in them. As to defendant Eliza Sapp, they pleaded that deceased, James H. House, made a conveyance to her which was to be in full of her share in his estate, and that she accepted the same as such, and that plaintiff Kerr took nothing under his deed from George Sapp. They also pleaded that, since they took possession under their deed from Allen House, they cleared off the property at an expense of $ 50, and made improvements thereon of the value of $ 2,250, and they asked that these matters be also taken into account in the event their title was not confirmed. In a reply to the pleadings setting up these various matters plaintiffs denied most of the affirmative statements, and pleaded the statute of frauds. They also pleaded that the rents and profits of the land should be offset against the claims for taxes. They also asked that, if it be found that the Sapp heirs had nothing in the land because of the conveyance to their mother, that their interest in the lands be proportionately increased. Plaintiff Sadie Kerr also pleaded that she was a minor fifteen years of age, and that the statute of limitations could not and would not run against her until after she became of age. The other defendants filed pleadings which are not now material because they seem to be content with the decree as rendered. That decree was to the effect that Yager and Yager were and are the owners of the property in fee simple. It also established and confirmed their title and dismissed plaintiff's petition. The facts so far recited being undisputed, and the appeal having been taken by plaintiffs alone, it is manifest that the only issues to be considered are those arising between plaintiffs and defendants Yager and Yager. The record title was in James H. House at the time of his death, and the burden was and is on the defendants Yager and Yager to show that the said James sold...
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