Sweeney v. Sparling

• Decision Date: 27 October 1890
• Citation: 46 N.W. 1068,81 Iowa 433
• Parties: SWEENEY v. SPARLING.
• Court: Iowa Supreme Court

81 Iowa 433

46 N.W. 1068

SWEENEY

v.SPARLING.

Supreme Court of Iowa.

Oct. 27, 1890.

Appeal from district court, Monona county; C. H. LEWIS, Judge.

This action involves the title to a tract of land in Monona county. The plaintiff claims to be the owner of the property by virtue of a homestead entry made on the 15th day of November, 1887. The defendant, by an answer and cross-bill, claims that, although the land in controversy was entered as a homestead by plaintiff, yet that it was under an agreement between the parties that, if the defendant would not attempt to homestead the land occupied and claimed by him, and would permit the plaintiff to homestead all land claimed by both, he (plaintiff) would convey to the defendant that part of the tract claimed by him when he (the plaintiff) procured title from the United States. There was a trial upon the merits, and a decree for defendant. Plaintiff appeals.S. H. Cochran and C. E. Underhill, for appellant.

Pendleton & Hubbard, for appellee.

ROTHROCK, C. J.

The land in controversy is situated on the east bank of the Missouri river. It appears from the evidence that the plaintiff homesteaded the whole tract on the 15th day of November, 1887. He took possession of the land in September, 1884, and made improvements thereon by building a house, stable, sheds, and cribs, and fencing and clearing up the land. One John Kennedy afterwards made a claim on part of the land, and lived upon it. The plaintiff advised the defendant that Kennedy desired to sell his claim, and, at the instance of plaintiff, the defendant bought Kennedy's claim, and moved on the land. The plaintiff assisted him in moving. Sparling has been in possession since that time. He built a house, and made other improvements. The evidence is quite clear that the plaintiff recognized the right of the defendant to the part of the land occupied by him to be the same as the right of the plaintiff to that part of which he had possession. The status of affairs so remained until the time of the entry. Both of the parties went to the United States land-office at Des Moines to enter their land, when it was discovered that, under the statutes of the United States, all the land had to be homesteaded by one person, or in a different shape from the way in which the parties themselves occupied it. The defendant claims that, to avoid the difficulty, it was agreed that Sweesey should enter the whole tract, and that, as soon as he procured the title, he would convey that part now in controversy to the defendant. The plaintiff denies that any such agreement was made. There is a conflict in the evidence on this question. We are satisfied that it is shown by a fair preponderance of the evidence that the agreement was made as claimed by defendant. There is a preponderance so far as the testimony of the witnesses is involved, and defendant and his witnesses are strongly corroborated by the fact that it is undisputed that the plaintiff procured the defendant to purchase whatever right Kennedy had, and recognized the right of defendant to be equal to his own until after it was homesteaded in his name. The question to be determined is,--can the defendant enforce the agreement made at Des Moines? Or is he precluded from setting it up and claiming under it...