Knudson v. Litchfield

• Decision Date: 20 January 1893
• Citation: 87 Iowa 111,54 N.W. 199
• Parties: KNUDSON v. LITCHFIELD ET AL.
• Court: Iowa Supreme Court

87 Iowa 111

54 N.W. 199

KNUDSON

v.LITCHFIELD ET AL.

Supreme Court of Iowa.

Jan. 20, 1893.

Appeal from district court, Humboldt county; George H. Carr, Judge.

Action in equity by plaintiff, claiming to be the owner of certain land, to enjoin defendants from selling the same on an execution issued on a judgment in favor of the defendant Litchfield and against Johnson. Judgment and decree for plaintiff. Defendants appeal.Gatch, Connor & Weaver, for appellants.

R. M. Wright, for appellee.

KINNE, J.

1. Plaintiff claims to be the owner in fee of the N. 1/2 of S. W. 1/4 of section 27, township 91, range 28 W. 5th P. M., and to have derived his title thereto through a tax deed dated November 1, 1883, and executed by the treasurer of Humboldt county, Iowa, to Parley Finch. Finch, on November 1, 1883, by warranty deed, conveyed the land to plaintiff. The defendant Fairman, as sheriff of said county, by virtue of an execution issued on a judgment in favor of defendant Litchfield and against one Johnson, levied on said real estate as the property of Johnson. Plaintiff averred that Johnson had no interest in the land; that said sheriff, unless restrained, would sell the same. He prayed for an injunction to restrain the sale, and for a decree declaring the land free from the lien of the levy, and for other relief. An injunction issued in accordance with the prayer of the petition. Defendants deny the ownership of plaintiff, or that he acquired any interest in the premises by virtue of the tax deed. Aver that said deed is fraudulent and void as against them, because the same, as well as the deed made by Finch, was executed in collusion with and for the benefit of Johnson, whose duty it was to pay the taxes, and for the purpose of defrauding the defendant Litchfield of his interest in said premises. Deny the allegation in the petition as to the execution and delivery of a deed by Finch to plaintiff, and deny all other allegations not expressly admitted. Defendants also say that April 2, 1879, Edwin C. Litchfield was the fee-simple owner of said real estate, and, as such, entered into a written contract with the said Johnson for the sale of the premises to him for $900, payable $112.50 November 1, 1879, and the balance in seven annual installments on November 1st of each year thereafter, with 8 per cent. annual interest; that Johnson entered into possession under said contract, and has ever since held possession thereunder; that Johnson paid $75 on said contract on January 14, 1882, and no further sum; that Edwin C. Litchfield died July 20, 1885, and said contract and his interest in said premises became the property of defendant Litchfield; that said contract provided that said Johnson should pay the taxes on said real estate for the years 1873 to 1878, inclusive, and all taxes should be assessed or become payable after April 2, 1879; that, Johnson having failed to pay the taxes, and having defaulted in payment of the sums due on his contract, the defendant, in March, 1889, began a suit for its foreclosure, and recovered a judgment against Johnson for the balance due thereon, notice having been given Johnson. The decree ordered the premises sold to satisfy the judgment. Execution issued, and was levied on said real estate, and the sale enjoined by plaintiff. Defendants, in a cross bill, set out the same facts as to the contract, the possession of defendant Litchfield through Johnson, the death of Edwin C. Litchfield, and defendant Litchfield's ownership of the contract, etc. Aver that plaintiff claims title to said premises by virtue of a tax deed, (the same heretofore referred to;) that no action for the recovery of said real estate has been brought by plaintiff, or any one claiming under said tax deed, within five years, and by reason thereof said deed and plaintiff's claim are of no force and effect, and asking that defendant Litchfield's title be quieted. Plaintiff, in answer to defendants' cross bill, denies defendant Litchfield's ownership; denies that Johnson entered into possession of the premises in 1879; admits that Johnson is now in possession of said premises, but not under the Litchfield contract; avers want of knowledge as to the death of Edwin C. Litchfield; denies that Edwin C. Litchfield and the defendant have held possession of said premises, or any part thereof, since July 2, 1879, by virtue of the contract referred to, and alleges that Johnson's possession has during most of the time since 1879 been adverse to said Litchfield's, and was adverse at the time when the period of five years from the date of the tax deed expired; admits that plaintiff claims ownership of the premises under the tax deed mentioned, and says that, by reason of the fact that the defendant was not in possession of said premises five years from the time of the execution and recording of said deed, it was not necessary that an action for possession of said premises should be brought by plaintiff within said five years. For a further defense, plaintiff pleads that on October 6, 1887, he recovered a decree in Humboldt district court against Johnson, who was then in possession of the premises, quieting his title to the same; that Johnson was duly served with personal notice of said suit, and the defendants herein were served with notice by publication; that said decree was obtained before the expiration of five years from the time the tax deed was executed. And for a further defense plaintiff pleads the decree above referred to as an adjudication; and avers that immediately after it was rendered, by contract, said Johnson became the tenant of plaintiff, and, as such, was in possession of said premises five years from and after the execution and recording of the tax deed. For a further defense plaintiff pleads the decree quieting title, and avers that thereafter defendant Litchfield obtained his judgment and decree of foreclosure against Johnson in an action wherein plaintiff was not made a party; that defendant treated said contract as a mortgage, and is seeking to sell said land as Johnson's property, and that he is estopped now from claiming that at the expiration of five years from the making of said tax deed the possession was the possession of him, the said Litchfield. Defendants, in an amendment to their cross bill, aver that the tax deed under which plaintiff claims title is void, because no notice of the expiration of the period of redemption from the tax sale on which said deed was issued was given to the persons then in possession of said real estate, and in whose name it was taxed, and no proof of service of such notice was filed with the treasurer of Humboldt county; and defendants, for reply to plaintiff's answer to defendants' cross bill, deny that the possession of Johnson of the premises has been adverse to defendants at any time; aver that the judgment and decree of the district court of Humboldt county is null and void, because said decree and proceeding in the suit on which it was based do not constitute due process of law, and are in violation of article 5 of the amendment to the constitution of the United States; that service was made on defendant Litchfield by publication, and he had no actual notice of the pendency of said suit, and made no appearance therein, and was then, and still is, a nonresident of the state of Iowa. They deny the agreement averred by plaintiff as having been entered into between him and Johnson, and say if it was made it was with the intention to defraud Litchfield,...