Oziah v. Howard

• Decision Date: 15 November 1910
• Citation: 149 Iowa 199,128 N.W. 364
• Parties: OZIAH ET AL. v. HOWARD ET AL.
• Court: Iowa Supreme Court

149 Iowa 199

128 N.W. 364

OZIAH ET AL.

v.HOWARD ET AL.

Supreme Court of Iowa.

Nov. 15, 1910.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action for partition of real property. There was a decree finding plaintiffs entitled to one-tenth interest in the property described, and ordering the sale of said property and distribution of the proceeds. During the pendency of the case the death of defendant, Thomas J. Howard, was suggested, and, on motion of plaintiffs, J. O. Howard was substituted as his administrator. It will be convenient, however, to still refer to Thomas J. Howard as defendant. The administrator appeals from the decree. Modified and affirmed.S. G. Van Auken and Bowen & Alberson, for appellant.

Earl R. Ferguson and Bair, Berryhill & Brammer, for appellees.

McCLAIN, J.

The plaintiffs ask partition of two parcels of real estate situated in Des Moines, the title of which stood in Mrs. Emma D. Howard at her decease, intestate and without descendants, in June, 1906, leaving as her survivors interested in her estate her husband, who is defendant in this action, and certain brothers and sisters, and descendants of brothers and sisters deceased. Plaintiffs claim to be the grandchildren of a brother of Mrs. Howard through their father, who was the sole heir of said brother, and who has been absent from the state and from his home unheard of by his family for such length of time that his death is to be presumed. The defendant puts in issue the ownership of the property in his deceased wife, alleging that she held title for him, and pleads also by way of defense a decree purporting to quiet the title to the property in him as the result of an action to quiet title brought by him against unknown claimants of the property and certain named defendants, among whom was the father of these plaintiffs. The validity of the decree in the action to quiet title is questioned by plaintiffs on the ground that they were residents of the state at the time of the bringing of the action, and were not served with personal notice thereof, and had no knowledge actual or constructive of the pendency of said action until long after the decree was rendered. The case was tried on the issues as to plaintiffs' interest in the property, and the validity of the decree quieting the title in defendant.

1. As Mrs. Howard died without issue and intestate, one-half interest in the property in controversy passed to her husband and the other one-half to her brothers and sisters and their heirs. It appears that defendant has acquired the interest of three brothers and a sister, and that another sister died without issue some years prior to the death of Mrs. Howard. Another brother had also died, but left surviving him a son, Frank Druse, the father of these plaintiffs. When Mrs. Howard died, Frank Druse had not been heard from by any member of his family or by any one who so far as it appears from this record would be likely to hear from him for 15 years. His wife, mother of the plaintiffs, had not heard from him for three years prior to securing a divorce in 1887, and was unable to learn where he was at that time. These plaintiffs have not heard from him since he left his home prior to the divorce, and efforts on their part to ascertain his whereabouts have been unavailing. One of his brothers who has taken a special interest in the welfare of the plaintiffs, and who took charge of Frank Druse's family after his desertion of them, has not heard from him for 18 years. When last heard from, he was in Illinois. Under these circumstances, we think it sufficiently established by the record that Frank Druse had been absent from the state and unheard from by those who might reasonably be expected to hear from him if alive for more than seven years prior to the death of Mrs. Howard, and the presumption that he was then dead, and that the plaintiffs as his heirs became entitled to the share of Mrs. Howard's property which he would have inherited had he been alive, must be entertained. As already indicated, this interest amounted to one-tenth of the property, and the court did not err in sustaining plaintiffs' claim to such interest, unless it had been cut off by the decree in the action to quiet title already referred to.

2. After the death of Mrs. Howard, the defendant, having procured quitclaims from three of her brothers and the heirs of a sister, instituted an action to quiet title for the purpose of cutting off the interests of other brothers and sisters or their heirs, alleging Mrs. Howard held the title in trust for him, and that said brothers and sisters had no interest in said property. In the petition in that action it was alleged that the said brothers and sisters or their heirs, if deceased, were nonresidents of the state, and that their residence was unknown, and in an affidavit for a order for service by publication it was stated that personal service could not be made on said parties within the state. Thereupon an order for publication of notice was duly entertained and notice by publication was given, and, on default, a decree was rendered finding that Mrs. Howard had no interest in the property, and that the plaintiff therein (this defendant) was the absolute and unqualified owner thereof.

In this action defendant relies on this decree as against the claims of plaintiffs, and plaintiffs allege the invalidity thereof for want of jurisdiction of the court over the plaintiffs due to the fact that at...