Milburn v. East

• Decision Date: 04 April 1905
• Citation: 102 N.W. 1116,128 Iowa 101
• Parties: MILBURN v. EAST ET AL.
• Court: Iowa Supreme Court

128 Iowa 101

102 N.W. 1116

MILBURN

v.EAST ET AL.

Supreme Court of Iowa.

April 4, 1905.

Appeal from District Court, Hamilton County; J. R. Whittaker, Judge.

Petition in probate by plaintiff, as administrator of Priscilla Emerson, deceased, to sell certain real estate for the purpose of paying claims against her estate. The defendants, claiming adversely to the title alleged to be in Priscilla Emerson, resisted the application. The case was tried by consent as in equity, and decree was rendered ordering the sale of the property, from which defendants appeal. Affirmed.George W. Hewitt, for appellants.

Wesley Martin and Chas. A. Biernatzki, for appellee.

McCLAIN, J.

Priscilla Emerson died in 1898, having been for several years a widow. She left surviving her, as heirs, Lorena May East and John Herschel East, the children of her deceased daughter, Eva May East, and her surviving husband, John H. East, who is also a defendant in this action. In 1899 plaintiff was appointed administrator of the estate of Priscilla Emerson, and served due notice of his appointment. Within 12 months, claims to the amount of $1,200 were filed, proven, and allowed against the estate. But the personal property was of small amount, and insufficient to pay the costs of administration. Not until June, 1902, was any real property discovered belonging to Mrs. Emerson; but at that time the administrator learned that there was a deed in the possession of John F. Duncombe, who had been the attorney for Mrs. Emerson, purporting to convey to her from her daughter Eva May East the real property involved in this proceeding. The administrator then petitioned to have said property sold for the payment of claims allowed against the estate. This property had been conveyed by Mrs. Emerson to her daughter Mrs. East by deed duly recorded, and the deed of reconveyance bore date February 7, 1894, and was not recorded. The evidence shows, however, without conflict, that this deed was delivered for Mrs. East to Mrs. Emerson on the day of its execution, and that it was subsequently by Mrs. Emerson placed in the hands of Duncombe as her attorney. During Duncombe's lifetime he stated that he held such a deed for Mrs. Emerson, and after his death it was found among other papers which had been held by him for her. There is no evidence that the delivery of the deed to Mrs. Emerson was coupled with any condition, or that it was placed in the hands of Duncombe to be held in escrow, or otherwise, save as an instrument fully executed and delivered to Mrs. Emerson. Title to the land in controversy in Mrs. Emerson was therefore fully made out, and we cannot indulge in any surmises or conjectures as to possible conditions which would defeat the conveyance of the title which the instrument thus executed and delivered purports to convey. The evidence of the deed itself is, however, corroborated by proof that taxes were subsequently paid by Mrs. Emerson, and that another parcel of real property conveyed by Mrs. East to Mrs Emerson by another deed of the same date, and also remaining unrecorded, was subsequently, by recorded deed, conveyed by Mrs. Emerson to Mrs. East. There is also proof of declarations made by Mrs. Emerson as to her ownership of the property.

It is contended, however, for appellants, that there was an adjudication during Mrs. Emerson's life that the property belonged to Mrs. East. The proceedings relied upon were as follows: George W. Hewitt, having been appointed administrator of the estate of Mrs. East while Mrs. Emerson was still living, made application to the probate court for an order on Mrs. Emerson, requiring her to appear and show cause why she should not deliver to said administrator a certain lease and certain notes which had been executed to her in connection with the rental of the premises in controversy, the allegation being that Mrs. Emerson had acted in the renting of such premises as the agent of Mrs. East. In this proceeding Mrs. Emerson made answer that she claimed the lease and notes by virtue of an interest in the property. Subsequently, Mrs. Emerson not appearing further in person or by attorney, the judge entered an order in probate directing Hewitt, as administrator, to retain the rent notes and treat them as a part of the estate of Mrs. East. But no order was made with reference to the lease itself. The claim is that this constituted an adjudication of title in Mrs. East conclusive on Mrs. Emerson, and counsel have gone into an elaborate discussion of the doctrine of res adjudicata. We think it sufficient, however, to say that the order of the probate court in the proceedings instituted by Hewitt, as administrator of Mrs. East, could not constitute an adjudication of the title as against Mrs. Emerson, for the following reasons: First, because the probate court had no authority in that proceeding to determine the title to the real estate, for Hewitt, as administrator, had no interest in the real estate of Mrs. East which he was seeking to assert in that proceeding; and, second, because the court made no determination as to the title to the real estate, but only as to the title to the rent notes. It is said that the title to the real estate was collaterally involved, for, if it belonged to Mrs. East, that would be a reason why the notes belonged to her estate; while, on the other hand, if...