Long v. Garey Inv. Co.

• Decision Date: 03 July 1907
• Citation: 112 N.W. 550,135 Iowa 398
• Parties: W. M. LONG, Administrator, v. GAREY INVESTMENT CO., Appellant
• Court: Iowa Supreme Court

112 N.W. 550

135 Iowa 398

W. M. LONG, Administrator, v. GAREY INVESTMENT CO., Appellant

Supreme Court of Iowa, Des Moines

July 3, 1907

Appeal from Taylor District Court.--HON.H. M. TOWNER, Judge.

Affirmed.

William M. Jackson, for appellant.

Crum Jaqua & Crum, for appellee.

OPINION

THE opinion states the case.-- Affirmed.

SHERWIN, J.

An opinion was filed in this case December 15, 1906, which is hereby withdrawn. J. H. Hooker died March 9, 1904. On the 4th day of that month he executed conveyances of certain lots in Clearfield, Taylor county, and of a farm of two hundred and eighteen acres in Ringgold county, and a bill of sale of his personal property, to his son, H. M. Hooker. The latter conveyed the lots to L. E. Yaryan June 27, 1904, who mortgaged them to J. F. McGinty. He deeded the farm to the Garey Investment Company on July 8th of the same year. W. M Long was appointed administrator of the estate of deceased May 12, 1904. But $ 2 came into his hands as such, and claims aggregating nearly $ 2,000 were filed and allowed. This action was begun in the district court of Taylor county January 26, 1905, by direction of said court, and therein plaintiff prayed that the conveyances be set aside and the property be sold to satisfy said claims. The defendants, save Yaryan and McGinty, were non-residents, and served with notice by publication only. As the widow and H. M. Hooker did not appear, decree by default was entered against them. The Garey Investment Company answered, as did Yaryan and McGinty, who also, in a cross-petition, prayed that title be quieted in them. Some time after all the evidence had been introduced, plaintiff dismissed the cause of action as to Yaryan and McGinty and as to the lots in Clearfield. Thereupon the Garey Investment Company moved that the action be dismissed as to the land in Ringgold county. This motion was overruled, whereupon decree was entered ordering that the conveyance from J. H. Hooker to his son and from the latter to the Garey Investment Company be set aside, and the administrator sell the land, or so much thereof as should be necessary to satisfy the claims, together with the costs of administration, provided that the company did not pay the same within ninety days. The Garey Investment Company appeals.

At the threshold of the case lies the question of the jurisdiction of the district court to enter the judgment it did against the appellant. It will be remembered that J. H. Hooker died March 9, 1904, and that on the 4th day of that month he conveyed to his son, H. M. Hooker, certain lots in Clearfield, Taylor county, and a farm in Ringgold county. The lots in Taylor county and the land in Ringgold county were subsequently conveyed by H. M. Hooker; the appellant acquiring its title from him. After the evidence had been introduced on the trial of the case, the plaintiff dismissed the petition so far as it related to the lots in Taylor county, and thereupon the court rendered a judgment for the defendants Yaryan and McGinty on their cross-petition; the decree quieting title as therein prayed. This left the land in Ringgold county that had been conveyed to the Garey Investment Company the only land remaining in controversy in the action, and, it being in another county, the Garey Investment company moved that the action be dismissed because the court had no jurisdiction. Appellant contends that the court was without jurisdiction to render the decree last mentioned. The order for the sale of real estate in the name of deceased must be obtained in the court granting administration. Section 3323, Code. And, where his known and acknowledged property may not be sufficient for the payment of debts, the court or judge may direct the administrator to file a petition in equity to secure to the estate the title to any real estate which in event of the insufficiency of the personal property, would be assets for the payment of debts. Section 3317, Code. This necessarily contemplated instituting such action in the district court, as the probate court is without equitable jurisdiction, and therefore that the petition be filed in the county designated by the general statute relating to the place of bringing actions. Section 3491 of the Code provides that "actions for the recovery of real property, or of an estate therein, or for the determination of such right or interest, or for the partition of real property, must be brought in the county in which the subject of the action or some part thereof is situated." Suits to set aside deeds and declare the property that of another than the grantees therein are clearly within this statute, and therefore should be brought in the county where the real estate or some part of it is situated. As personal judgment is not demanded in such cases, the action is solely in rem, and the court does not acquire jurisdiction, save when the venue is rightly laid. Orcutt v. Hanson, 71 Iowa 514, 32 N.W. 482. See McDonald v. Second National Bank, 106 Iowa 517, 76 N.W. 1011.

But having once acquired jurisdiction, the court does not lose it when it appears that all the relief prayed cannot be granted. If it should turn out that the petition, in so far as it relates to the land situated in the county where the court sits, should be dismissed, this would not deprive the court of the power of granting appropriate relief as to the part located in another county. Having once acquired jurisdiction, it is retained until the...