Markham v. Burlington Ins. Co.

• Decision Date: 13 October 1886
• Citation: 69 Iowa 515,29 N.W. 435
• Parties: MARKHAM v. BURLINGTON INS. CO.
• Court: Iowa Supreme Court

69 Iowa 515

29 N.W. 435

MARKHAM

v.BURLINGTON INS. CO.

Supreme Court of Iowa.

October 13, 1886.

Appeal from Franklin district court.

Action in equity to set aside a judgment and execution sale and sheriff's deed. The court dismissed the plaintiff's petition, and he appeals.J. H. Scales, for appellant.

Newman & Blake and J. M. Hemingway, for appellee.

ADAMS, C. J.

In 1881 an action was brought in the name of this plaintiff, John Markham, against this defendant, to recover upon a policy of fire insurance. Afterwards the action was dismissed, and the costs of the action, amounting to $89 and some cents, were taxed against the plaintiff, and judgment was rendered therefor. An execution was issued, and the land in question, being an improved farm of 80 acres, in Franklin county, was sold and bid in by the defendant; and, after expiration of the time of redemption, the defendant obtained a sheriff's deed. The action is brought to set aside that deed, and also the judgment, as being a cloud upon the title. The plaintiff's prayer for relief is based upon the alleged ground that he was not a party to the action in which the judgment was rendered, for the reason that he never brought the action, nor authorized any one to bring it for him, and had no knowledge of it until after the property in question had been sold. The attorney who brought the action is J. H. Scales, and it is shown, beyond question, that the person who employed him was Stephen Markham, the plaintiff's father.

About 1878 the land in question was bought of one Hrutke, and the deed was executed to John Markham, the plaintiff. The defendant contends, however, that it was in fact bought by Stephen Markham, and paid for by him, and that the plaintiff has in fact no beneficial interest in the same, and cannot, for that reason, maintain this action. But in our opinion the evidence shows otherwise. The plaintiff, John Markham, is a wealthy farmer, residing in Dubuque county; and while the evidence shows that his father, Stephen,was not at the time of the purchase of the farm entirely without means, he does not appear to have had much, and was in poor health. John, according to his testimony, and we do not think it is successfully contradicted, purchased the farm with his own money, at his father's request, and with the intention that his father and mother should occupy it, and support themselves from it, while they should live. With this understanding the father and mother moved upon the land, cultivated it, and for the most part paid the taxes. While living there the agent of the defendant company, supposing Stephen, the father, to be the owner of the property, solicited him to take a policy of insurance upon the house, which the father agreed to do. The policy was made payable to John Markham, who appeared from the deed to be the owner of the property, and who the agent of the company supposed was the person making the application; being ignorant of the fact that the name of the latter was Stephen, and of the fact that he was not the grantee in the deed. The policy was paid for, as we understand, by Stephen. Whether he...