Sleeper v. Killion

Decision Date24 September 1917
Docket Number30635
PartiesJENNIE A. SLEEPER, Guardian, Appellee, v. E. C. KILLION et al., Appellants
CourtIowa Supreme Court

REHEARING DENIED DECEMBER 18, 1917.

Appeal from Crawford District Court.--M. E. HUTCHISON, Judge.

ACTION in equity. Decree for plaintiff, and defendants appeal. The nature of the controversy and the material facts are stated in the opinion.--Reversed and remanded.

Reversed and remanded.

Sims & Kuehnle, for appellants.

E. H Swasey and Mayne & Green, for appellee.

WEAVER J. GAYNOR, C. J., PRESTON and STEVENS, JJ., concur.

OPINION

WEAVER, J.

In October, 1899, Ellen A. Sleeper died testate, seized in fee of the land which is the subject of this litigation. By the terms of her will, the testatrix devised a life estate in the land to her son, Guy A. Sleeper, with remainder over to his children. At the date of the death of the testatrix, her son, the life tenant, was the husband of Jennie A. Sleeper and the father of one minor child, Helen P. Sleeper. Thereafter, there were born to him two other children, John James Sleeper and George A. Sleeper. Of the children named, John James died in April, 1902, and Helen P. in April, 1903. Both of the children were unmarried infants, and left their parents, Guy A. Sleeper and Jennie A. Sleeper, as their sole heirs. At the date of the death of the testatrix, the land in question was incumbered by a mortgage; and, in November, 1902, after the death of John James Sleeper and before the death of Helen P. Sleeper, the mortgage debt not having been paid, a suit was brought to foreclose the lien. The petition in that proceeding named both the living children of the life tenant as defendants; but, as it now appears, they were not named in the original notice, and the record does not disclose the service upon them of any sufficient notice. A decree of foreclosure was entered against all the named defendants, including the life tenant, Guy A. Sleeper, and his wife. Under this decree, the land was sold at sheriff's sale to one Voss, and, no redemption being made, he secured a sheriff's deed. Later, and after the death of the two children John James and Helen P., their said parents, Guy A. Sleeper and wife, united in conveying the land by warranty deed to one Dixon. Whatever title was acquired by Voss under the sheriff's deed, and the title conveyed by Guy A. Sleeper and wife to Dixon, have since been merged or united by proper conveyances in E. C. Killion, the defendant in this action. Guy A. Sleeper, the life tenant, died March 2, 1910, survived by his wife, Jennie A. Sleeper, and by George A. Sleeper, his only living child. Thereafter, Jennie A. Sleeper, widow of the life tenant, as guardian of the minor, George A. Sleeper, instituted this present action. Her claim is framed on the theory that, under the devise made in the will of Ellen A. Sleeper, the remainder over after the death of the life tenant vested alone in the child or children who might be living at his death; and, as her ward, George A. Sleeper, is the only person of that class, he became and is vested with the entire title. His right in this respect, she says, is in no manner affected by the foreclosure of the mortgage, because he was not served with notice of the proceeding, and the decree as against him is void for want of jurisdiction. The petition prays that the title of the ward be confirmed and quieted as against the defendants, and that they be required to account for rents and profits. The answer of the defendants admitted in general terms the facts pleaded in the first four paragraphs of the petition, but denied all other allegations therein. It is further alleged affirmatively that the notice was served on the minor defendants in the foreclosure suit, that said defendants appeared and answered by guardian ad litem, and that the trial court found and adjudged the service sufficient; wherefore it is asserted that the right and interest of plaintiff's ward were cut off by the sheriff's sale and deed. By cross-petition, defendants set up the same alleged facts, and asked that the title of the defendant Killion be confirmed and quieted against the claims of the plaintiff and her ward. The trial court having found for the defendants upon the issues thus joined, the plaintiff appealed to this court, which held that there was no service of notice upon the minors in the foreclosure proceeding, and reversed the decree. Sleeper v. Killion, 166 Iowa 205, 147 N.W. 314. The cause having been remanded upon procedendo, defendants again appeared, and asked leave to amend their answer and cross-petition by alleging specifically that, at the death of the testatrix, Ellen A. Sleeper, her son, Guy A. Sleeper, the devisee of a life estate under her will, had but one child. Helen A. Sleeper, who thereupon became vested with the entire remainder; that thereafter, there were born to the life tenant two other children, John J. and George A., with the result that the remainder opened, admitting said two later-born children to share therein on equal terms with Helen P.; that thereafter, and during the lifetime of their father, both Helen P. and John J. died intestate, leaving their parents, Guy A. Sleeper and Jennie A. Sleeper, their sole heirs; and that the title and interest so acquired by Guy A. Sleeper and Jennie A. Sleeper in the land was conveyed by their warranty deed to Dixon, and by mesne conveyances from him to the defendant Killion. In other words, the claim thus asserted is that, conceding the invalidity of the foreclosure proceedings as against the plaintiff's ward, the extent of his title or interest in the land never exceeded a one-third share therein, and that the other two-thirds, which had been vested in Helen P. and John J., passed by inheritance upon their death to their parents, and thence by good and sufficient conveyances to the defendant; and because thereof the relief, if any, granted to plaintiff for her ward should be limited to the one-third part or share in the property. The trial court denied the motion for leave to amend the answer, and sustained plaintiff's motion for a decree confirming the title of her ward to the entire property, reserving, however, the matter of accounting for rents and profits and claims under the Occupying Claimant's Act. From the decree thus entered, the defendants have appealed.

At a prior term of this court, an opinion was filed affirming that decree. Sleeper v. Killion, 157 N.W. 226. Thereafter, defendant's petition for rehearing was sustained; and the cause has been resubmitted, with additional arguments on the part of counsel for the respective parties.

On the original appeal from the decree in defendant's favor, the attention of counsel and of the court was directed almost entirely to the question of the jurisdiction of the trial court in the foreclosure proceedings to enter a decree of any kind against plaintiff's ward, because of want of the notice required by law. The extent of the ward's right in the premises in case the decree of foreclosure was set aside as against him had little and quite perfunctory consideration. The trial court, having found in favor of the validity of the foreclosure, had no occasion to pass upon or decide the further question concerning the nature or extent of the title or interest to which the ward would have become entitled, had the jurisdictional objection to the foreclosure been found good. Indeed, that phase of the controversy first arose for consideration only after this court, on plaintiff's appeal, held the foreclosure decree void as against the plaintiff's ward. As will be seen by reference to the opinion reversing the original decree, the one proposition on which the reversal was ordered is that the trial "court was without jurisdiction to enter the decree against plaintiff herein, in the original suit, and that such decree was void." The order of reversal was general in form, and contained no specific direction or mandate as to the nature or extent of the relief to be awarded the plaintiff. Upon the restoration of the case to the docket of the trial court, that tribunal was bound, of course, to accept as final the ruling of this court that the foreclosure was void, and to proceed to enter a decree on that theory; but, in the absence of other specific direction, express or implied, it was within the province, and it was the duty, of that court to look to the record and to determine therefrom the nature and extent of the relief to which the plaintiff became entitled upon abrogation of the foreclosure. Such relief could not rightfully extend beyond the restoration to the ward of the property and property rights of which he had been erroneously deprived by such foreclosure. With the case in this situation, the defendant sought to amend his answer by specifically alleging facts showing that the ward's title was limited to a one-third part of the land in controversy. The refusal of leave to so amend, and the decree thereupon rendered in plaintiff's favor, awarding the entire property to her ward, give rise to the following pertinent inquiries; What interest did the plaintiff's ward acquire in the property under the terms of his grandmother's will? If it shall appear as a matter of law that he acquired no more than an undivided one third, is there anything in the record to prevent or estop the defendants from insisting that the title to be established in said ward's favor by the court's decree shall not exceed the share so indicated? Was any amendment to the answer necessary to enable the defendants to insist upon their rights in that respect; and if necessary, should the leave asked for have been granted?

I. The will of the grandmother provided in terms that the title to all her...

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