Rivers v. Olmsted
| Decision Date | 24 April 1885 |
| Citation | 66 Iowa 186,23 N.W. 392 |
| Parties | RIVERS v. OLMSTED AND OTHERS. MCCALL v. RIVERS AND ANOTHER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Polk circuit court.
These are actions in equity which involve the rights of the respective parties to certain lands in Dallas county. By a final decree, rendered after a consolidation of the suits, the title to the lands was declared to be in Hugh D. McCall. John D. Rivers and Louisa Rivers appeal. The facts are stated in the opinion.John D. Rivers, for appellants.
Parsons & Perry, for Hugh D. McCall, appellee.
A. G. Kingsbury, for National Life Ins. Co., appellee.
1. On the first day of September, 1875, John D. Rivers purchased an entire section of land excepting 40 acres, and gave a mortgage for $6,100, bearing 10 per cent. interest, payable annually, to secure the whole of the purchase money. On the eighth day of February, 1876, he conveyed the land to H. A. Olmsted, subject to the mortgage, said Olmsted having assumed and agreed to pay the same. The sale to Olmsted embraced a large quantity of other land in Dallas county, and a lot in the city of Des Moines. Olmsted conveyed that part of the land above described to his son Charles S. Olmsted, and on July 3, 1877, he made a conveyance of the same to H. D. McCall, and placed the same on record. McCall had made a contract with the said Olmsted for the purchase of the land, but what the terms of the same were does not clearly appear.
The contract was not understood alike by the parties, and Olmsted commenced an action against McCall in relation thereto. Rivers intervened in the action, and demanded the appointment of a receiver to take possession of the land, and control the same. A receiver was appointed, and the grounds for the appointment were that the notes and mortgage of Rivers were outstanding for the whole of the purchase money; and no interest having been paid thereon, and if the payment thereof should be deferred, and the mortgage eventually foreclosed, the proceeds of the sale of the land would be insufficient to pay the mortgage, leaving a balance of the debt as a personal claim against Rivers. In this action McCall at first repudiated the deed of the land made by Olmsted to him. But afterwards, and on the eighteenth day of June, 1878, McCall paid to Olmsted $1,250 in pursuance of a settlement made between them, and a decree was entered in the action quieting the title of McCall to the land. This decree conferred upon McCall all the right, title, and interest which Olmsted acquired by the conveyance from Rivers. McCall paid off the purchase money, mortgage, and interest, and took an assignment thereof to his wife. He was in possession of the land before the receiver was appointed, and for a time held his possession under the receiver. But since the settlement with Olmsted, and the decree quieting his title, he has been in the actual possession and residing upon the land, and has made valuable improvements thereon.
In January, 1878, Rivers commenced an action in equity in the Polk district court against all of the Olmsted family who had any connection with the title to any of the property which he had conveyed to H. A. Olmsted, in which action he claimed that the contract under which he conveyed the real estate to H. A. Olmsted was procured by Olmsted by certain false and fraudulent representations, by which Rivers was damaged in the sum of $25,000. The prayer of his petition was that all of the deeds and conveyances made by Rivers to the defendants in that suit, and by the defendants to each other, be canceled and annulled. He made H. D. McCall a party defendant to the action, and demanded the same relief against him as against the other parties defendant. The original notice in that action was personally served on H. D. McCall on the nineteenth day of January, 1878. A notice of the pendency of the action was filed in the office of the clerk of the district court of Dallas county on the twenty-fourth day of January, 1878. All of the defendants, except McCall, filed their answer in that action on the ninth day of May, 1878. McCall made no appearance. The answer was a full denial of all fraud, and it made full and copious charges of fraud against Rivers, and demanded a judgment against him for some $27,000, and other relief. That cause was continued from term to term, until July 15, 1881, when it was transferred to the circuit court of Polk county. H. D. McCall having made no appearance to the action, the transfer was made without his knowledge, and without any motion filed for that purpose. The ground of the transfer, as recited in the transcript, was that Hon. William H. McHENRY, then judge of the district court, had been of counsel in the case.
On the twenty-ninth of November, 1881, Rivers filed an amendment to his petition, setting forth that after the beginning of the action Charles S. Olmsted had conveyed part of the land to James G. Olmsted, and placed the same on record without the knowledge of James G. Olmsted, and that the same should be canceled of record, and that said James G. Olmsted, H. A. Olmsted, and Fannie S. Olmsted had conveyed their interest in the property in controversy to Robert James, and that it was necessary that he should be made a party defendant. On the same day the answer of Robert James was filed, in which he admitted the allegations of the petition and amendment thereto, and consented to judgment and decree as prayed. It is somewhere stated in the record that this answer was prepared and filed by Rivers, and we do not understand that this fact is disputed. The answer was signed by James in person. On the next day Rivers dismissed the action “as against the defendant Olmsted,” and took leave to make James a party.
On the twenty-fourth day of December, 1881, Rivers procured a default to be entered up against McCall, and on the same day he caused a decree to be entered canceling the deed made by himself to H. A. Olmsted, and all deeds subsequently made by all of the defendants, and reinvesting the title to all of the property in himself. McCall had no knowledge of the transfer of the cause from the district court, and no knowledge of the default...
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