Sleeper v. Killion

• Citation: 157 N.W. 226
• Decision Date: 10 April 1916
• Docket Number: No. 30635.,30635.
• Parties: SLEEPER v. KILLION ET AL.
• Court: United States State Supreme Court of Iowa

157 N.W. 226

SLEEPER

v.KILLION ET AL.

No. 30635.

Supreme Court of Iowa.

April 10, 1916.

Appeal from District Court, Crawford County; M. E. Hutchinson, Judge.

The opinion sufficiently states the case. Modified, affirmed, and remanded.Sims & Kuehnle, of Denison, for appellants.

E. H. Swazey, of Dow City, and Mayne & Green, of Council Bluffs, for appellee.

WEAVER, J.

The central question to be here considered and disposed of will be best understood if, before attempting its statement, we recite as near as may be in chronological order the facts and proceedings from which it has arisen.

Ellen A. Sleeper died testate October 10, 1899, seised of a certain tract of land incumbered by mortgage. By the terms of her will she devised a life estate in the land to her son Guy A. Sleeper, with remainder over to his children. At the time of the death of the testatrix her son Guy A. Sleeper was the husband of Jennie A. Sleeper and the father of one minor child, Helen P. Sleeper. There were later born to him two other children, John J. and George A. Helen P. Sleeper died April 6, 1903, and John J. died in April, 1902, both leaving their surviving parents as their sole heirs. In November, 1902, after the death of the minor child John J., but during the lifetime and minority of the other two children, Helen P. and George A., the party holding the mortgage upon the land instituted an action for its foreclosure. The petition in that action named as defendants therein Guy A. Sleeper and his wife, Jennie, as well as the two living minor children, but as it later developed the names of the children were omitted from the original notice. A decree of foreclosure was entered, against all the named defendants, the property was sold at sheriff's sale to one Voss, to whom, the land not being redeemed, a sheriff's deed was subsequently made. Later Voss and wife sold and conveyed the property to the defendant E. C. Killion. It should also be said that after the death of the two children, John J. and Helen P., Guy A. Sleeper and his wife united in conveying the land by warranty deed to one Dixon, and that the title or interest so conveyed, if any, has since been vested in the defendant E. C. Killion. Guy A. Sleeper, the life tenant named in the will of his mother, died March 2, 1910. The plaintiff is his widow, and her ward, George A. Sleeper, is his only surviving child.

This action was thereafter instituted by the plaintiff on behalf of her ward alleging the facts as we have related them concerning the terms of the will of Ellen A. Sleeper, mother of Guy A., that Guy A. took a life estate only in the land, and that upon his death the entire fee became vested in the ward George A. It further set out the fact of the foreclosure proceedings, the decree and the sheriff's deed thereunder, but averred that said decree and deed were void and of no effect as against the ward for want of jurisdiction of his person, there having been no service of notice upon him or upon his minor sister Helen P. as required by law. Decree was therefore prayed holding the sheriff's deed for naught, establishing and quieting the title to the land in the child George A. Sleeper, and for an accounting for the use and profits of the property while in the defendant's hands. To that action the defendants Killion and others appeared. The first paragraph of their answer is an express admission of paragraphs 1 to 5 of the petition. The admitted paragraphs of the petition are as follows: Paragraph 1 alleges plaintiff's qualification as the guardian of George A. Sleeper. Paragraph 2 alleges that the ward is the minor child of Guy A. Sleeper, deceased, and was his sole surviving child at the time of his death. Paragraph 3 alleges the former ownership of the land by Ellen A. Sleeper and that by her will a life estate therein was devised to Guy A. Sleeper. Paragraph 4 is in these words:

“That under and by the terms of said will, a life estate in the premises hereinbefore described passed to and was vested in said Guy A. Sleeper and the remainder, upon the death of said Guy A. Sleeper, passed to and vested in his children living at the time of his death, and that the above-named minor as the sole surviving child of the said Guy A. Sleeper at the time of his death became vested in fee simple with the absolute title to the premises hereinbefore described.”

The only denial in said answer was of “each and every other allegation therein contained.” The affirmative defense pleaded was an alleged showing that notice of the foreclosure proceedings was served upon the minor children, Helen P. and George A. Sleeper, and upon their parents with whom they resided; that upon the return of said service the court appointed a guardian ad litem for said minors; that the guardian ad litem filed an answer in their behalf; and that the court by its decree adjudged such service sufficient and foreclosed the mortgage lien against them. Upon these allegations it was asserted that the court acquired jurisdiction of the said minors and that they were bound and estopped by the adjudication. By cross-petition the defendants repeated their allegation of the sufficiency of the foreclosure proceedings and asked to have their title to the lands quieted against the claims of the plaintiff and her ward.

Trial was had upon the issues so joined, and the trial court found for the defendants sustaining the validity of the foreclosure proceedings against the minor defendants therein. An appeal was taken by plaintiff, and the decree so entered was by this court reversed. Sleeper v. Killion, 166 Iowa, 205, 147 N. W. 314. It was there held that the trial court in the foreclosure proceedings acquired no jurisdiction of the minors, and that as against them the decree of foreclosure and the sheriff's sale and deed were without effect. The opinion of this court by Gaynor, J., is expressly based upon the assumption (justified by the pleadings and admissions to which we have referred) that upon the death of the other children the title in remainder vested in George A. Sleeper alone, and that upon the death of the life tenant said minor became vested with the entire fee, “unless his right thereto has been divested by the mortgage.” In short, under the issues as originally joined the minor's title to the land was conceded, unless it had been eliminated by the foreclosure. The contest centered entirely upon and around the question whether the minor children then living had been effectually brought into the foreclosure suit. It was upon that record and that question the court was asked to pass and did pass, and, having found that the trial court in the foreclosure proceedings did not acquire jurisdiction of the children or of either of them, it follows of necessity that the plaintiff's claim of title should be confirmed and upheld, and that as against him the foreclosure judgment and the sheriff's sale and deed should be declared void. This was the general course of the discussion upon that appeal. The order for a reversal was entered in general terms and was accompanied by no order for a remand for further proceedings below. Possibly the regular course of practicethereafter would have been for the plaintiff to have asked for and obtained the entry of a decree in this court. It appears, however, that a procedendo was taken to the trial court where the defendants appeared and asked an order permitting them to file an amended and substituted answer and cross-petition, alleging as grounds therefor that through oversight and mistake, and by having their attention absorbed in the one question as to the validity and sufficiency of the notice in the foreclosure proceedings, they failed to question the descent of the title from Ellen A. Sleeper to the minor plaintiff; but since the reversal of the former decree they have discovered unquestionable proof that he never became vested therewith or at most not to exceed the one-third thereof. In connection with this application defendants tendered an amended or substituted answer and cross-petition in which they withdraw their admission of the fourth paragraph of plaintiff's petition. They further alleged that at the death of the testatrix Ellen A. Sleeper, the life tenant Guy A. had but one child, Helen P., who then became vested with the entire remainder; that subsequently there was born to said life tenant two other children, John J. and George A., and under the terms of the will the remainder opened to admit the laterborn children to an equal right therein; that thereafter both Helen P. and John J. died, and their fee in remainder in two-thirds of the land became vested in their parents, Guy A. and Jennie A., and the title so acquired was by them conveyed to one Dixon, and by conveyance from him is now vested in the defendants. In this connection defendant further pleads that relying upon the title acquired by the foreclosure and by the conveyance...