Montagne v. Cherokee County
| Citation | 205 N.W. 228,200 Iowa 534 |
| Decision Date | 29 September 1925 |
| Docket Number | 35867 |
| Parties | LENA MONTAGNE et al., Appellants, v. CHEROKEE COUNTY et al., Appellees |
| Court | United States State Supreme Court of Iowa |
Appeal from Cherokee District Court.--WILLIAM HUTCHINSON, Judge.
ACTION in equity begun August 24, 1911, to set aside certain judgments, sheriff's sales and deeds, and quiet title in the plaintiffs to 80 acres of land designated as the north half of the northeast quarter of Section 2, in Township 90 north, Range 42 west of the 5th P. M., in Cherokee County Iowa. The grounds urged for equitable relief are the insanity of plaintiffs' ancestor during the time the events of which they complain took place, and fraud on the part of county officials, especially the county attorney, in procuring the judgments, executions, and sales of the land with knowledge of the alleged insanity. The trial court entered a decree for the defendants, and the plaintiffs appeal.
Affirmed.
William Mulvaney, for appellants.
Herrick & Herrick, for appellees.
FAVILLE, C. J., takes no part.
DE GRAFF, J.
The facts out of which the issues arise may be briefly stated. It is undisputed that John George Montagne, plaintiffs' ancestor, was the rightful owner of the land in controversy on June 29, 1900. On that date he was adjudged insane by the commissioners of insanity of Cherokee County, and committed to the hospital for the insane at Clarinda. He was discharged as cured October 3d following, and a certificate issued by the superintendent of said institution, attesting his belief that Montagne was restored in mind. This certificate was filed in Cherokee, August 5, 1901. On August 8, 1901, Cherokee County, by J. W. Dailey, its county auditor, brought an action against John George Montagne, to recover the sum of $ 132.05, with interest thereon, as expenses incurred by the county resulting from Montagne's insanity. He was served personally as though sui juris, and no guardian ad litem was appointed. Upon his failure to appear, judgment by default was rendered against him. Thereafter, execution was levied on the east half of the land now in controversy, and it was sold to the county by the sheriff for the sum of the judgment, interest, and costs. The right of redemption was not claimed, and on March 12, 1904, a sheriff's deed was executed to the county.
By warranty deed, executed and recorded December 17, 1902, John George Montagne and wife conveyed the 80 acres in question to their son, Henry Montagne. November 1, 1904, Cherokee County recovered a judgment against Henry Montagne in the sum of $ 120, interest and costs of $ 6, in an action brought for rent due for use of the east 40 acres. This was also a default judgment, Henry having been served personally, and having failed to appear. Execution was levied on the west 40 acres of the land conveyed to Henry by his father, and it was sold, January 30, 1905, to J. A. Miller and O. E. Hess for $ 148.52, the amount of the judgment, interest, and costs. There was no redemption, and sheriff's deed was executed to the vendees, January 31, 1906.
February 1, 1906, Cherokee County quitclaimed the east 40 acres of said land to J. A. Miller, and on the same day, he quitclaimed a one-half undivided interest therein to O. E. Hess. June 6, 1906, J. A. Miller conveyed by quitclaim deed his undivided one-half interest in the land now in controversy to O. E. Hess, and June 8, 1906, O. E. Hess quitclaimed said land to E. E. Rowe, who claims to be a bona-fide purchaser for value, and without notice of any of the facts urged by plaintiffs to set aside his conveyance.
March 14, 1906, O. E. Hess and J. A. Miller brought an action in equity against John George Montagne and Henry Montagne, for the purpose of quieting their title to said land. Notice was served on both the defendants in that action personally, but, upon their failure to appear, a default decree was entered against said defendants, quieting title in plaintiffs. Thereafter, action in equity was brought by O. E. Hess and J. A. Miller against John George Montagne, Henry Montagne, John Montagne, and George Montagne for an injunction to prevent defendants from trespassing upon said land or interfering with plaintiffs' possession. Temporary injunction was issued and served on defendants. Personal service was made on the defendants in the original cause August 21, 1906. Defendants having defaulted, permanent injunction was ordered against them September 25, 1906. E. E. Rowe was substituted as plaintiff, and two of the defendants, Henry and George Montagne, were arrested and brought before the court on bench warrants, charged with contempt in violating the injunction. They were adjudged in contempt, and on promise that they would refrain from any further interference with the land, they were released, upon payment of costs, April 4, 1907.
John George Montagne died June 12, 1907, and a paper purporting to be his will, executed June 2, 1907, was admitted to probate September 3, 1907. In an action to set aside the probate, brought by Lena Montagne Mileham, daughter of the deceased, the jury found, November 13, 1908, that the deceased was of unsound mind, and did not have testamentary capacity at the time of the execution and publication of said instrument. Judgment entered setting aside the alleged will was affirmed by the Supreme Court in Mileham v. Montagne, 148 Iowa 476, 125 N.W. 664.
It is earnestly contended by appellants that the judgments, decrees, and conveyances affecting title to the land in controversy should be set aside, a decree entered finding their ancestor to have died seized of said land, and title to the same quieted in themselves. The grounds advanced for such decree are the alleged insanity of John George Montagne and the fraud chargeable to the county in securing judgment on a claim the greater part of which was invalid, against said Montagne, with a knowledge of his insanity on the part of the county officials, and especially on the part of the county attorney, who profited greatly by the various transactions. Considerable evidence was introduced to establish the insanity of Montagne, and it is contended that the record clearly shows that a fraud was perpetrated upon the court in securing the judgments complained of against him. But with the view we take of the case, it will not be necessary to determine either issue. It is argued that, since Montagne was not served with notice as provided by Section 3526 of the Code, 1897, and no guardian ad litem was appointed, according to Section 3485, judgment rendered against him was absolutely void. But the law is clearly otherwise. A judgment rendered against an insane person in a proceeding where jurisdiction is acquired by such service as would be valid but for defendant's insanity is, at most, voidable, and not void. The effect of insanity is to render the judgment subject to attack, provided that a prima-facie defense to the action is shown to have existed. The rule we here express is universally announced by the courts. Lamprey v. Nudd, 29 N.H. 299; Atwood v. Lester, 20 R.I. 660; West v. McDonald (Ky.), 113 S.W. 872; Heard v. Sack, 81 Mo. 610; Thomas v. Hunsucker, 108 N.C. 720 (13 S.E. 221); Denni v. Elliott, 60 Tex. 337; Dunn v. Dunn, 114 Cal. 210 (46 P. 5); Carroll Imp. Co. v. Engleman (Iowa), 99 N.W. 574 (not officially reported); Hawley v. Griffin, 121 Iowa 667, 92 N.W. 113; Watson v. Horner, 178 Iowa 499, 159 N.W. 1032; Jones v. Schaffner, 193 Iowa 1262, 188 N.W. 787. Nor is it material to the result that no appearance was made by or on behalf of the insane defendant, and judgment was rendered against him by default. Hawley v. Griffin, supra; Watson v. Horner, supra.
Fraud in procuring a judgment, where, as in this case, the fraud does not go to the jurisdiction of the court, has the same effect as insanity of the defendant. The judgment is rendered voidable, and not void. Mahoney v. State Ins. Co., 133 Iowa 570, 110 N.W. 1041; Phelan v. Johnson, 80 Iowa 727, 46 N.W. 68; Bunch v. United States, 164 C.C.A. 513 (252 F. 673); Price & Beaird v. Eastland County Land and Abst. Co. (Tex. Civ. App.), 211 S.W. 478.
It is further contended that all subsequent purchasers, including defendant E. E. Rowe, were chargeable with notice of the defect in the title, and therefore cannot assert the rights of bona-fide purchasers. Were this contention granted,--which, doubtless, is unavoidable, under the facts of the instant case,--we are unable to see how appellants' position is thereby strengthened. It will be admitted that none of the transactions subsequent to the judgment from which they derive their validity, and in which they acquired their inception, can be attacked without first vacating such judgment. If the judgments, therefore involving the title to the property in question,...
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