Sullivan v. Sullivan
| Decision Date | 27 October 1908 |
| Citation | 117 N.W. 1086,139 Iowa 679 |
| Parties | BRIDGET SULLIVAN, Appellant, v. PATRICK SULLIVAN and SUSAN SULLIVAN, Appellees |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.--HON. EDMUND NICHOLS, Judge.
ACTION involving plaintiff's claim of dower in lands of which it is alleged her husband, James Sullivan, died seised. Decree for defendants, and plaintiff appeals.
Reversed.
Burton Russell, for appellant.
White & Clarke, for appellees.
On October 1, 1893, James Sullivan, being the owner of several forty-acre tracts of land, including the southwest quarter of the southeast quarter of section 21, township 81, range 26 in Dallas County, united with his wife, Bridget Sullivan, in a conveyance of the last-described tract to their son, James Sullivan, Jr. The deed so given recites that, in consideration of such conveyance, James Sullivan Jr., undertook to pay to the grantors, and to the survivor of them, during life, the sum of $ 100 per year, and all taxes accruing on said property, and that he would not convey or incumber the same during the lifetime of said grantors. It also further recites that, upon any failure to pay said annuity promptly when due, or to pay the taxes within six months after the same became due, or upon any attempt to convey or incumber the title during the life of the grantors, "the title here conveyed shall at once and without any act on the part of said James Sullivan or Bridget Sullivan revert to and vest in the said James Sullivan or his heirs, and all rights, title, interest, or claim of the said James Sullivan, Jr., his heirs or executors in and to said premises shall at once cease and the said James Sullivan and his heirs shall have all the rights, title, claim and right of possession in and to said premises they would have had, had they not made this conveyance." The grantee also assumed the payment of a mortgage of $ 600 existing on the land. James Sullivan, Jr., took and held possession of the property for a year or two, and then reconveyed it to his father, his wife not joining in the deed, after which the property was occupied, used, and controlled by James Sullivan, Sr., until his death, in the year 1901, and thereafter by his widow, the plaintiff herein. After the death of the son this action was instituted by the mother for the apportionment or partition of her share as widow in all the lands of which her husband died seised, joining therein as defendants Patrick Sullivan, Michael Sullivan, William Sullivan, John Sullivan, and Katy Sands, the surviving children of James Sullivan, Sr., together with Susan Sullivan, surviving widow of James Sullivan, Jr., and Mabel Newell, his only child. Other defendants were named, but their interests were of a collateral or nominal character, and not involved in the questions to be here considered. In her petition plaintiff alleges that James Sullivan died seised of the tract of land in question, and claims dower or distributive share therein.
The defendants, except Susan Sullivan, widow of James, Jr., and Mabel Newell and her husband, C. C. Newell, made no appearance or defense to the action. The three persons last named appeared and filed answer, the material averments of which, so far as they require consideration on this appeal, are that James Sullivan, Jr., married the defendant Susan Sullivan in the year 1883, and that said marriage relation continued unbroken until his death, long after the conveyance to him of the said land by James Sullivan and Bridget Sullivan in the year 1893, and that the said Susan never in any manner conveyed or released her right of dower therein. By a cross-petition in her behalf the court was also asked to establish her claim to one-third interest in said property. Replying to the cross-petition, plaintiff alleged the making of the deed of October 31, 1903, as hereinbefore described, alleged the failure of James Sullivan, Jr., to pay the annuity stipulated for in said deed, or the taxes accruing on the land, or the mortgage existing thereon, and the consequent reversion of the title under the deed to James Sullivan, Sr. Plaintiff further alleges that because of such failure James Sullivan, claiming a reversion of the title, demanded surrender of the possession and reconveyance of the property, and in pursuance thereof James Sullivan, Jr., did make the reconveyance referred to, and thereupon James Sullivan, Sr., took, and thereafter until his death held, exclusive possession. To this reply the defendants demurred generally, and also stating, as specific ground thereof, that the reply avers no facts constituting any forfeiture of the title of James Sullivan, Jr., and fails to show that proper legal steps were taken by entry, or otherwise, to divest the dower rights of Susan Sullivan. The demurrer was sustained, and this ruling the plaintiff assigns for error. On final hearing the court found for the defendant Susan Sullivan, upon the matters averred in her cross-petition, and the plaintiff appeals.
I. The appellees move to dismiss the appeal, alleging the insufficiency of the notice to give this court jurisdiction to consider the case. The notice of appeal was served upon the defendants Susan Sullivan, Mabel Newell, and C. C. Newell, or upon their attorneys of record. No service was made, or attempted to be made, upon the other surviving heirs of James Sullivan, Sr. The motion is grounded upon the theory that the defaulting defendants are necessary parties to the appeal, and that failure to serve them with notice constitutes a jurisdictional defect. The point is not well taken. Code, section 4111, provides that "part of several co-parties may appeal; but in such cases they must serve notice of the appeal upon those not joining therein and file proof thereof with the clerk of the Supreme Court." While the language of the provision, literally construed, is quite broad and general, it has long been construed as requiring service upon only such co-parties as may be prejudicially affected by a reversal of the judgment or ruling from which the appeal is taken. In the late case of Bowman v. Besley, 122 Iowa 42, 97 N.W. 60, we said that such a defect in service of notice is not jurisdictional, and motion to dismiss was denied because a reversal would work no prejudice to the party not served. In Oliver v. Perry, 131 Iowa 654, 109 N.W. 183, we said: "The rule prevails that, unless the co-party will be adversely affected by the decision of this court, omission to serve him will not deprive this court of jurisdiction." In Ewart v. Ewart, 126 Iowa 219, 101 N.W. 869, which, like this, was an action for partition, we held that failure to serve parties not adversely affected by the success of the appeal was not jurisdictional, saying "such notice is evidently not necessary, unless the rights of such parties may be prejudicially affected by the appeal." The same rule has been repeatedly affirmed in other cases. For example, see Wolfe v. Jaffray, 88 Iowa 358, 55 N.W. 91; Payne v. Raubinek, 82 Iowa 587, 48 N.W. 995. It needs but a moment's reflection to see that in this case the interest of the defaulting heirs not served with notice of the appeal cannot be injuriously affected by the success of the appellant. Under the decree of the District Court each of said defendants not served is entitled to two twenty-sevenths of the forty-acre tract, while if the appellant's theory prevails, and the claim of dower by Susan Sullivan is eliminated, the share descending to each of said defendants is one-ninth or three twenty-sevenths. This brings the case squarely within the rule laid down in Ewart v. Ewart, supra. The motion to dismiss is denied.
II. Appellees insist that the ruling upon the demurrer was waived by the appellant by proceeding to a trial. The record is not quite clear upon the question thus raised, but it would seem that the demurrer to the reply was submitted under an agreement to allow the court to rule thereon in its final decree, and this was done. The demurrer did not reach all the matters presented for the hearing and decision of the court, and we think the right to raise the question of the correctness of the ruling was not waived. The appeal is from both the ruling on the demurrer and from the decree, and appellant is entitled to a hearing thereon.
III. Does the record show the appellee Susan Sullivan to have a dower right in this land? Of the general rule of the wife's inchoate right in land of which her husband may be seised at any time...
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