McCullough v. Connelly

• Decision Date: 16 December 1907
• Citation: 114 N.W. 301,137 Iowa 682
• Parties: MCCULLOUGH v. CONNELLY (FINNERAN, INTERVENER).
• Court: Iowa Supreme Court

137 Iowa 682

114 N.W. 301

MCCULLOUGH

v.CONNELLY (FINNERAN, INTERVENER).

Supreme Court of Iowa.

Dec. 16, 1907.

Appeal from District Court, Crawford County; Z. A. Church, Judge.

(An opinion was filed in this case at a former term of this court. Therein the absence from the record of a material fact was given importance to control the decision. Thereafter a petition for rehearing was filed, presenting the contention that certain statements found in the argument of appellee, as originally filed, should be given effect as an admission of the fact assumed in the opinion to be absent; and on further consideration we conclude that the contention should be sustained. Accordingly the former opinion is withdrawn, and the following substituted in the place thereof, and the petition for rehearing is overruled.)

Action in equity for specific performance of a contract to convey real estate and to establish title. The opinion states the case. From a decree in favor of Kate Finneran, intervener, the plaintiff appeals. Affirmed.

For former opinion, see 106 N. W. 756.Sallinger & Korte and Geo. A. Richardson, for appellant.

Connor & Lally, for appellee.

BISHOP, J.

The real estate in question consists of a 40-acre tract situated in Crawford county; and on May 6, 1901, the same was owned by the defendant, Amanda Connelly. Plaintiff's action is based on a contract in writing for the sale of said real estate executed in the name of the defendant by one Jackson, agent. The writing is dated May 6, 1901, and recites payment of the consideration in full, and provides that deed of conveyance shall be made on request and surrender of the contract. Such writing was not made a matter of record. In November defendant, acting in person, contracted in writing to sell said real estate to intervener, and December 9, 1901, conveyance thereof was made to intervener by warranty deed, and the consideration money was then paid in full. The deed thus made was recorded December 11, 1901. The action was commenced December 31, 1901. Plaintiff alleges his request for a deed and the refusal of defendant to comply therewith. It is the prayer of his petition that he have an order for the execution of a deed; and, if defendant fails to comply, that he have a decree establishing his title. On February 1, 1902, Kate Finneran filed her petition of intervention, asserting her ownership of the land under the deed made to her by defendant as above stated; that she bought the land in good faith, paying full value, and without knowledge of any claim thereto on the part of plaintiff. She prays that her title be quieted as against both plaintiff and defendant, and for general equitable relief. Plaintiff answered the petition of intervention, admitting the purchase of the property by intervener and the conveyance to her by defendant, admitting that he (plaintiff) claims an interest in the property and denying all other allegations. The prayer is that his title be quieted as against intervener. The cause was brought on for trial as between plaintiff and intervener on December 21, 1902. On the second day of the trial plaintiff amended his answer to the petition of intervention, setting up that on October 24, 1902, there was rendered and entered by said court a judgment and decree in said cause, as follows: “ ‘In the District Court in and for Crawford County, Iowa. Samuel McCullough, Plaintiff, v. Amanda Connelly, Defendant (Kate Finneran, Intervener). Decree. On the 22d day of April, A. D. 1902, default herein was entered upon due and personal service made on the defendant, Amanda Connelly, and entered against said defendant; and, the said cause now coming on for final hearing as against said defendant, and upon the said default, the court, being fully advised in the premises, orders, adjudges, and decrees that the equities are with the plaintiff; that the allegations of his petition are sustained by the proof. And it is further ordered, therefore, that the said defendant, Amanda Connelly, execute a warranty deed to this plaintiff, conveying to him the land described in said petition; that she execute the said deed within thirty days from the actual entry of record of this decree; and that, failing to do so, said plaintiff is decreed to have title in him to the said land, and that said defendant, Amanda Connelly, and all persons claiming by, through, or under her, be forever barred and estopped from having or claiming any right, title, or interest in and to said lands adverse to this plaintiff. Done in open court October 24, 1902. [Signed] S. M. Elwood, Judge.’ That by reason of the rendition of said decree all matters in controversy between plaintiff and intervener have been fully adjudicated. * * * That by reason of the premises intervener is now estopped to question the title of plaintiff to the land in controversy. Wherefore plaintiff prays as before.” To this amendment the intervener filed reply, in effect a general denial, in which she denied that the decree so pleaded was of any force or effect as against her.

Appellant seeks a reversal of the decree appealed from on two grounds: (1) That the plea of adjudication and estoppel was good and should have been sustained; (2) that the decree is not sustained by, and is contrary to, the evidence.

Considering the first ground it is no part of appellant's contention that intervener, in person or by her counsel, had actual knowledge of the entry of the default decree prior to the time it was pleaded as against her by plaintiff. The question presented, then, is whether the decree was one which, upon being entered, became binding upon intervener as an adjudication of her rights as declared upon in her petition. This question is ruled, on principle at least, as we think, by the case of Kern v. Wilson, 82 Iowa, 407, 48 N. W. 919, unless it must be said that the appearance of the phrase in the decree, “and all persons claiming by, through or under her,” has effect to forbid application of the rule of that case. In that case the controversy was over a stock of goods. Plaintiff's claim to the stock was based upon a chattel mortgage executed to him by one Dwyer, the owner; whereas, defendant, as sheriff, claimed the same under levy of a writ of attachment in favor of Olney & McDaid, and against said Dwyer. Defendant pleaded a former adjudication as against plaintiff, and, in support thereof brought forward the files and records in a case of Olney & McDaid v. Dwyer, for which it was made to appear that therein an attachment had been issued and levied upon the goods in question; that plaintiff in this action, Kern, had intervened in that action, claiming the goods by virtue of his mortgage; further, it was made to appear that Dwyer defaulted, and that judgment was entered against him, with an order for the sale of the attached property under special execution to satisfy such judgment. Quoting now from the opinion: “It does not appear that any...