Slattery v. Slattery

• Decision Date: 27 May 1903
• Citation: 95 N.W. 201,120 Iowa 717
• Parties: ELLEN SLATTERY, Appellee, v. LIZZIE SLATTERY, et al, Appellants
• Court: Iowa Supreme Court

95 N.W. 201

120 Iowa 717

ELLEN SLATTERY, Appellee, v. LIZZIE SLATTERY, et al, Appellants

Supreme Court of Iowa, Des Moines

May 27, 1903

Appeal from Lee District Court.--HON. H. BANK, Judge.

ACTION to recover possession of real estate and for rents and profits thereof. The action was commenced at law, but was transferred to the equity docket, and tried as an equitable action. It appears without question tat Daniel Slattery, Sr. died intestate in the year 1885; that he left surviving him this plaintiff, as his widow, and three children--two sons Charles and Daniel, Jr., and one daughter, Catharine; that at the time of his death he was the owner, among other tracts of land, of the land in controversy, which was the family homestead, and is described as the east half of the southwest quarter of section 8, township 66, range 5, Lee county. It is the contention of plaintiff that on March 13, 1886, she and her three children above named entered into an agreement in writing in substance waiving administration and providing for an amicable division and partition of the estate of the deceased husband and father; that by such writing the details respecting the distribution of the personal property are set forth, and reference is made to the fact that the real estate has been partitioned by appropriate deeds executed and delivered. Plaintiff further contends that pursuant to said agreement there was conveyed to her the fee title to the homestead, being the lands here in controversy, by her said children, including Daniel, Jr., and that by separate deeds the remaining lands forming part of the estate were conveyed one part to Daniel, Jr., and one part to Catharine. Plaintiff also says that on the same day she executed and delivered to Daniel, Jr., a deed of the lands here in controversy conveying to him the fee title thereto, but reserving to herself, however, the right of possession and the rents and profits of said lands for the period of her natural life. The facts thus contended for by plaintiff are not disputed by defendants, save and except that it is denied that Daniel Jr., joined in the execution and delivery of the written contract and the deed to plaintiff as alleged. The following undisputed facts also appear: That, following the transactions above referred to, plaintiff and her son Daniel, Jr., who at the time was unmarried, lived together upon the land in controversy, and that an accounting for rent was made each year to plaintiff by her said son; that matters thus continued until January, 1897, when Daniel, Jr., died, leaving surviving him the defendant Lizzie Slattery, whom he had married in the meantime, as his widow, and one minor son, Charles M. The latter died in March, 1899, before the commencement of this action. After the death of Daniel, Jr., the defendant, his widow, continued to occupy the lands, and when this controversy arose was in possession thereof through the defendant Carr as her tenant. After the death of her son, plaintiff went to live with her daughter, Catharine. This action was brought because of the alleged refusal of defendants to recognize the rights of plaintiff in and to said lands as claimed by her, said plaintiff, both as to possession and payment of rent. In one division of her answer defendant Lizzie Slattery pleads adverse possession under claim of right, by herself and her husband, for more than ten years, and that all right of plaintiff is barred by the statute of limitations. In another division she claims to be the absolute owner of one-third of the land, and that she owns the other two-thirds subject to a life estate or homestead right on the part of plaintiff, and this she claims under the deed of Charles and Catherine to plaintiff and the deed of plaintiff to her deceased husband, being the deeds hereinbefore referred to. As already stated, however, she denies that such deed to plaintiff was either executed or delivered by her husband, Daniel, Jr. Further, by her answer the value of the rents and profits is put in issue. Said defendant also files a cross-petition, in which she asks that her title to an undivided one-third of said lands be quieted in her, and that plaintiff be decreed to have no interest whatever therein. There was a decree in favor of plaintiff for the possession of the entire tract of land, and as against defendant Lizzie Slattery for the sum of $ 675, being the value as found, of the rents and profits withheld by her. Defendants appeal.

Affirmed.

J. F. Smith and B. A. Dolan for appellants.

James C. Davis and J. E. Craig for appellee.

OPINION

BISHOP, C. J.

The initial question presented by the record is whether or not Daniel Slattery, Jr., joined in the execution and delivery of the deed to the lands in controversy to his mother, as alleged by her. It is manifest that the answer to such question must be determinative of the principal issue in the case. Indeed, counsel for appellants do not deny that, if such question shall be determined in accordance with the contention of appellee, then no other questions remain for consideration, save that made by the plea of the statute of limitations, and that respecting the value of the withheld rents and profits. From our reading of the record we think but one answer can be made to such initial question; that is that Daniel Slattery, Jr., was a party, with his mother, brother, and sister, to the agreement for the disposition of the estate of his deceased father; that he signed the written agreement to which we have made reference, and joined in the execution and delivery of the deed to plaintiff upon which she bases her right to recover in this action. The conclusions thus reached by us are based upon evidence found in the record, and the truth of...