McCullough v. Connelly

• Decision Date: 04 April 1906
• Citation: 106 N.W. 756
• Parties: MCCULLOUGH v. CONNELLY (FINNERAN, INTERVENER).
• Court: Iowa Supreme Court

106 N.W. 756

MCCULLOUGH

v.CONNELLY (FINNERAN, INTERVENER).

Supreme Court of Iowa.

April 4, 1906.

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

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.Salinger & 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 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.

This 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 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, 1901, 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 said defendant, Amanda Connelly, execute a warranty deed to ...