Olson v. Leibpke

• Citation: 81 N.W. 801,110 Iowa 594
• Parties: THOR OLSON AND Z. NERNESS, Appellants, v. JOHN LEIBPKE, JR., et all., Appellees, HERMAN WEISE, Appellant, v. JOHN LEIBPKE, JR., et al., Appellees
• Decision Date: 07 February 1900
• Court: United States State Supreme Court of Iowa

81 N.W. 801

110 Iowa 594

THOR OLSON AND Z. NERNESS, Appellants, v. JOHN LEIBPKE, JR., et all., Appellees, HERMAN WEISE, Appellant, v. JOHN LEIBPKE, JR., et al., Appellees

Supreme Court of Iowa, Des Moines

February 7, 1900

Appeal from Calhoun District Court.--HON. S. M. ELWOOD, Judge.

THESE two cases present the same issues as to different lands. They were tried together in the district court, and are so submitted here. They are actions to quiet title to, and to obtain possession of certain lands in Calhoun county. The plaintiffs are the grantees of the lands in controversy through a chain of title descending from the American Emigrant Company, whose title was based upon the act of congress of 1850, known as the "Swamp Land Act." The defendants Long are the widow and heirs of Ira L. Long deceased, who at the time of his death held title to this land, through conveyances descending from the Dubuque & Pacific Railroad Company, whose title was claimed under the act of congress of May 15, 1856, granting land to Iowa in aid of the construction of railroads in the state. The other defendants are tenants of their co-defendants. There was a decree for defendants in the district court, and plaintiffs appeal.

Affirmed.

H. E Long and H. M. Funson, for appellants.

Botsford Healy & Healy, for appellees.

SHERWIN J. GRANGER, C. J., not sitting.

OPINION

SHERWIN, J.

In January, 1884, the American Emigrant Company brought an action in the district court of Calhoun county against these defendants Long, to quiet its title to the lands involved in these cases. Issue was joined, and a trial had upon the merits, which resulted in a decree, May 10, 1888, in favor of the emigrant company, quieting its title. An appeal was taken from that judgment, and this court, following the holding of the Supreme Court of the United States in Rogers Locomotive Mach. Works v. American Emigrant Co., 164 U.S. 559, (17 S.Ct. 188, 41 L.Ed. 552) reversed the case. Emigrant Co. v. Long, 105 Iowa 194, 74 N.W. 940, decided April 9, 1898. The plaintiffs purchased in the fall of 1895, and contend that they were purchasers in good faith, for full consideration, and without notice, either actual or constructive, of the defendants' claim of title. The controlling question, therefore, in these cases, is whether the plaintiffs are entitled to be protected as such purchasers. It may be conceded that the plaintiffs, at the time of their pur-purchases, had no actual knowledge of the condition of the litigation between the emigrant company and the Longs, other than what was imparted by the abstract of title. What, then, was the status of the case after the decree in the district court? The records of that court showed that a notice of appeal had been served within the statutory time. The stipulation entered into by the parties, through their attorneys, expressly recognized the sufficiency of the service, and this court held it good in the same case, and that it conferred jurisdiction upon the court to hear and determine the appeal. It follows, then, that at the time of the plaintiff's purchase, in the fall of 1895, the case was pending in this court, and the records of the district court of Calhoun county so showed. The plaintiffs were therefore purchasers pendente lite. Section 2628 of the Code of 1873 provided that "when a petition has been filed affecting real estate, the action is pending so as to charge third persons with notice of its pendency, and, while pending, no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff's rights, if the real property affected be situated in the county wherein the petition is filed. " It will be borne in mind that the defendants had answered in the Emigrant Case, claiming adverse title to this particular land, and that the case had been tried upon its merits. This court, in Ferrier v. Buzick, 6 Iowa 258, says: "The purchaser of property actually in litigation, pendente lite, for a valuable consideration, and though he may have had no express or implied notice in point of fact, is affected in the same manner as if he had such notice. This rule, though it may in some cases operate with hardship upon a purchaser, is one of general convenience, and is now well and firmly established,"--citing cases. See, also, 1 Story Equity Jurisprudence 411. The primary object of the rule of lis pendens is to keep the property within the power of the court until final judgment or decree shall be entered, and thus enable courts to give force and effect to such judgments. Bennett Lis Pendens, section 12; Murray v. Ballou, 1 Johns. Ch. 566. "It is founded upon the necessity of such a rule in order to give effect to the proceedings in courts of justice. Without it, the administration of justice might, in all cases, be frustrated by successive alienations of the property which was the object of litigation, pending the suit, so that every judgment and decree could be rendered abortive, where the recovery of specific property was the object." Newman v. Chapman, 2 Rand. 93; Bennett Lis Pendens, section 14. The rule under the common law, and the rule which has been generally followed by the courts where there is no statute affecting the question, is that lis pendens continues until the suit is determined by final decree, or until it is suspended by a failure to make what is called a "full prosecution." It is also held that an appeal from a final judgment of an inferior court continues the lis pendens during the pendency of the appeal. Ferrier v. Buzick, supra; Washburn v. Van Steenwyk, 32 Minn. 336, (20 N.W. 324). The question as to what is a "full," or, as some writers put it, "continuous, prosecution of a cause," either in the trial court or in the court to which an appeal is taken, is one which, of necessity, must be determined from the facts appearing in the particular case under consideration. No iron-clad rule can be laid down for the government of all cases. The general rule laid down by the authorities is that there must "be a prosecution of the suit without such intermission as may appear to be inexcusable, and shall not be satisfactorily explained." 13 Am. & Eng. Enc. Law, 889, and cases cited in note 2. It is also generally held...