Lees v. Wetmore

• Decision Date: 21 April 1882
• Citation: 12 N.W. 238,58 Iowa 170
• Parties: LEES v. WETMORE
• Court: Iowa Supreme Court

12 N.W. 238

58 Iowa 170

LEES v. WETMORE

Supreme Court of Iowa, Des Moines

April 21, 1882

Appeal from Polk District Court.

ACTION to quiet the title to and recover the possession of certain real estate situated in Guthrie county. The cause was originally brought at law, but upon the filing of an amended and substituted petition, was transferred to the chancery docket; and upon a trial on the merits a decree was rendered granting the relief prayed for by plaintiff. Defendant appeals.

AFFIRMED.

St John & Williams, for appellant.

Wright Cummings & Wright, for appellee.

OPINION

BECK, J.

I.

The substituted petition sets out certain proceedings in the probate court and conveyances thereunder, upon which plaintiff's claim to recover the land is based, and prays that his title may be quieted and that the cloud thereon, by reason of the conveyances, under which plaintiff claims title, may be removed. After this pleading was filed the cause, upon application of plaintiff, was transferred to the equity docket and tried as an action in chancery. Defendant insists that this action was erroneous for the reason that he is in possession of the land, and that plaintiff's proper remedy is an action at law to recover the possession. We have held, however, that an action to quiet title may be prosecuted by one not in possession. Lewis v. Soule, 52 Iowa 11, 2 N.W. 400. And we know of no reason or principle of law which stands in the way of the plaintiff, in such a case, uniting a prayer to recover possession with the prayer that the cloud on his title be removed, as was done by the substituted petition in this case.

II. The land in controversy in this case, a half section, was entered by Samuel H. Walker and Almon White, jointly, both of whom have since departed this life, and defendant claims title thereto under a deed executed to him by Mary E. White, the sole heir of each of the patentees, being the daughter of White and granddaughter of Walker. Her heirship and conveyance to defendant are shown by the testimony, and defendant is entitled to the land unless his title is defeated by the proceedings and conveyances, which we will now proceed to consider.

The plaintiff claims under these proceedings the title and interest held by each patentee to the undivided moiety of the land. As each separate interest rests upon a title different from that under which the other is claimed, it becomes necessary to discuss the respective titles separately. We will first consider the title to the undivided half of the land acquired from the government by Samuel H. Walker, the grandfather of Mary E. White, under whom defendant claims the land.

1. In 1864 Walker died, leaving a will which disposes of all his property in the following language:

"First. I give and bequeath (at my decease) unto my granddaughter, Mary Elizabeth White, my silver watch.

"Second. I desire and order my executors to sell all my real estate and personal property (except the watch) at such times as they shall deem expedient, for the best interest of the estate, and place the proceeds of such sales at interest, until my granddaughter, Mary Elizabeth White, shall arrive at the age of twenty-one years, after which time I desire and direct that the interest or increase of all my estate be paid over to the said Mary Elizabeth, from time to time, as my executors may deem expedient and proper for her comfort and support, till she, the said Mary Elizabeth, shall arrive to the age of twenty-eight years.

"Third. As soon as the said Mary Elizabeth arrives to the age of twenty-eight years, I desire and direct my executors to pay over to her direct all my personal estate, of whatever name or kind.

"Fourth. In case the said Mary Elizabeth shall not survive to the age of twenty-eight years, I desire and direct my executors to pay over to my brother, John W. Walker, one-half of all my personal estate, and one-half to my deceased sister's children--Sarah J., Mary Ann, Frederick and Ella, children of Elizabeth Barnard.

"Fifth. I do nominate and appoint James P. Brewer, of Claremount, in the county of Sullivan and state of New Hampshire, and John B. Fisk, to be the executors of this my last will and testament."

2. This will was admitted to probate in 1864, in Cheshire county, New Hampshire, where the testator lived and died. John B. Fisk alone qualified as executor. The other person named as executor in the will declined to qualify.

3. In 1865 the will was filed in the County Court of Polk county (the court of probate) and duly admitted to probate as a foreign testament, and John Mitchell was appointed and qualified as the executor for the State of Iowa.

4. The executor, Mitchell, filed in the Polk county probate court a petition, praying that an order be made for the sale of the testator's interest in the land in controversy, in accordance with the provisions of the will. This petition was filed August 15th, 1865, and by an order of the court was set down for hearing on the first Monday of September following, the first day of the next term of the court. It was further ordered that "notice of the hearing * * * * be served on the sole heir and legatee according to law."

5. A notice in proper form was issued addressed to the sole legatee, Mary E. White, and her guardian, Nathan White, which was returned with acceptance of service indorsed thereon and signed by both the legatee and guardian.

6. An answer to the petition for the sale of the land was filed by H. M. Bush, alleging that he had been appointed guardian ad litem, and denying the petition and calling for strict proof of its allegations. There is no record of an order of the court appointing a guardian ad litem.

7. Upon the day fixed for the hearing of the case the following record entry was made, showing the proceeding therein recited.

"This cause now coming on to be heard on petition, notice served and answer of the guardian ad litem, and evidence of John Mitchell, and the court being satisfied that the notice to defendant had been legally served, and that under the provisions of the last will and testament of the said Samuel H. Walker, the right to sell the real estate of the testator is clearly given, and all things having been fully heard and considered, it is therefore ordered and decreed that the said real estate, described in said petition, be sold as provided in the said will, either at private or public sale, after first being appraised at its true cash value.

"If sold at private sale the land should bring about the appraised value, and if sold at public sale notice as the law requires must be given; and in either case the sale may be made for cash in hand, or on time, not exceeding one year, as the executor may deem best. And the court appointed as appraisers of the land in said petition described, J. B. Stewart, J. P. Foster and Thomas Seely."

8. The appraisers after being duly qualified, made appraisement of the land and report thereof, which the court approved and confirmed.

9. In pursuance of the order of sale and the appraisement, the land was sold to plaintiff's grantors by the executor, who executed a deed therefor, which was returned to the court and duly approved by an order in the following language:

"The following deed having been this 28th day of August, A. D. 1867, returned into court for approval, and it appearing to the court that the said administrator has complied with all the requirements of the law and of this court in making such sale and conveyance, it is now therefore ordered, that the said sale and foregoing deed of conveyance be and the same are hereby approved."

III. Other facts disclosed by the evidence, as the execution of a deed by Fisk, the executor who had qualified in New Hampshire, and the filing of a copy of the will in the probate court of Guthrie county, both having been done after the commencement of this action, need not be here recited, as, in the view we take, they do not figure in the case. Having reached the conclusion that the sale of the land by Mitchell as executor is valid, we are relieved of the duty of considering defendant's objections to the other proceedings had afterwards. This branch of the case, involving the title to the interest in the land held by Walker, may be more satisfactorily disposed of by considering the objections to the proceedings under which the land was sold by Mitchell, urged by defendant's counsel.

IV. It is first insisted that "the power of sale, conferred by Walker's will upon the executors therein named, was a personal trust, calling for the exercise of their judgment and discretion, and could not be delegated by them to Mitchell." And it is also said that "the authority conferred by the will upon the executors was a power coupled with a trust in the proceeds of the land, and the county court had no jurisdiction over the subject of the trust."

Counsel do not, in these quotations, nor in other parts of their argument, assume that the persons named in the will as executors are to be regarded as testamentary trustees and are, therefore, not subject to the law prescribing the powers and duties of executors. Their position is simply, as they state it, that the executors are clothed by the terms of the will with certain duties and powers in the nature of a trust. This is quite true, and in all cases executors are charged with just such trusts, and are in some sense trustees. But, notwithstanding such trust duties, they are regarded as executors. If duties are imposed which are in the nature of trusts, and extend beyond the ordinary duties of executors, they become trustees. See 3 Redfield on Wills, p. 76, Sec. 20, and p. 70, Sec. 10.

In the case before us the will empowered the executors, at their discretion, to...