Tesdell v. Hanes, 49148
| Decision Date | 03 April 1957 |
| Docket Number | No. 49148,49148 |
| Parties | E. S. TESDELL, Jr., Appellee, v. Lawrence D. HANES, Carol M. Hanes and Iowa Savings and Loan Association, Appellants. |
| Court | Iowa Supreme Court |
H. S. Hunn, Des Moines, for appellants.
Tesdell & Miller, Des Moines, for appellee.
Plaintiff's action is one for declaratory judgment wherein it is sought to be held the title to certain real estate is 'good and merchantable' as provided for in a purchase agreement. The action involves the sufficiency and effectiveness of the provisions of section 614.17, 1954 Code, I.C.A., which statute pertains to the right of recovery of real estate by a claimant on a claim of title arising prior to 1940. In the present case the abstract of title shows there was a break or irregularity in the chain of title in 1907. It was the claim of the defendants the recording of an affidavit under the provisions of the section referred to did not correct the claimed error and the abstract as submitted did not show good and merchantable title. Upon submission of evidence and the pleaded issues to the trial court it held for the plaintiff and that the tendered abstract evidenced the title sought. The defendants have appealed.
The property involved is a part of an original 10 acre tract in Polk County, Iowa, the title to a portion of which is here questioned. The abstract of title tendered to the present purchasers, two of the defendants herein, shows that prior to August 26, 1907 the then title holder held title to the southeast quarter of the southwest quarter of the northwest quarter of Section 25, Township 79 north, Range 25 west of the 5th P.M.; and that on August 26, 1907 the title holder conveyed the southwest one-fourth of the southeast one-fourth of the northwest one-fourth of Section 25, Township 79 north, Range 25 west of the 5th P.M. (Emphasis supplied.) The abstract also shows a purported correction of the record and the fact that the deed had been corrected so as to describe the land as conveyed as the southeast one-fourth of the southwest one-fourth of the northwest one-fourth of section 25. A photostatic copy of the deed record in the office of the County Recorder of Polk County, Iowa, which shows the recording of the deed in question, is attached to the answer of the Iowa Savings and Loan Association, one of the defendants. It also is referred to in the answer of Lawrence D. Hanes and Carol M. Hanes, defendants herein and the purchaser of the property involved in this action. This copy of the deed record plainly shows a correction had been made. There is no reference in the abstract of title showing by whom the change was made or who authorized it. The original deed was not offered in evidence. From and after the corrected deed the title continued with a proper description until the property was platted. It is the claim of the defendants the abstract of title does not show a good and merchantable title because of the claimed irregularity.
A portion of the purchase price was withheld by the purchaser until the title was perfected. In order that the sellers of the property might obtain their full purchase price an assignment of their interest in the withheld funds was made to the present plaintiff.
Section 614.17, 1954 Code, I.C.A., is as follows: 'Claims to real estate antedating 1940. No action based upon any claim arising or existing prior to January 1, 1940, shall be maintained, either at law or in equity, in any court to recover any real estate in this state or to recover or establish any interest therein or claim thereto, legal or equitable, against the holder of the record title to such real estate in possession, when such holder of the record title and his grantors immediate or remote are shown by the record to have held chain of title to said real estate, since January 1, 1940, unless such claimant, by himself, or by his attorney or agent, or if he be a minor or under legal disability, by his guardian, trustee, or either parent shall within one year from and after July 4, 1951, file in the office of the recorder of deeds of the county wherein such real estate is situated, a statement in writing, which shall be duly acknowledged, definitely describing the real estate involved, the nature and extent of the right or interest claimed, and stating the facts upon which the same is based. * * * 'For the purposes of this section, such possession of said real estate may be shown of record by affidavits showing such possession, and when said affidavits have been filed and recorded, it shall be the duty of the recorder to enter upon the margin of said record, a certificate to the effect that said affidavits were filed by the owner in possession, as named in said affidavits, or by his attorney in fact, as shown by the records and in like manner, such affidavits may be filed and recorded where any action was barred on any claim by this section as in force prior to July 4, 1951.' (Emphasis supplied.)
The abstract of title which was offered in evidence shows the affidavit of A. T. Lynner relative to his possession of the property here in controversy. Lynner and his wife were the title holders of the property involved prior to the sale to the Hanes. This affidavit also was an exhibit in this cause. The affiant therein states: '* * * I and my wife, Sarah A. Lynner, acquired title to the above described real estate under warranty deed dated November 6, 1954, recorded * * *, in the records in the Office of the Recorder of Polk County, Iowa.
'I further state that my said wife and I are in actual possession of said real estate and that we and our predecessors in the chain of title under which we claim ownership and the right to possession of said real estate have been, since prior to January 1, 1940, in continuous, actual, visible, open, notorious, exclusive and hostile adverse possession thereof, under color of title and claim of right to possession as against the world, and have improved said property and paid taxes thereon, and that neither the title nor the right to possession of ourselves or any of those under whom we claim have been disputed or openly attacked by anyone.
'This affidavit is for the purpose of confirming title to the above described real estate under the provisions of Section 614.17 of the 1950 Code of Iowa, as amended [I.C.A.], and other statutes relative thereto.' (Emphasis supplied.)
There is no showing there was any claim filed to the property here involved as required by the foregoing quoted statute. The trial court, in its finding of facts and conclusions of law held, under the statute in question, the abstract of title showed all the necessary facts to enable an examiner to rely on the quoted statute and thereby cured the claimed irregularities. There is also ample showing the affidavit was filed by the owner when in possession of the real estate in question and as required by the statute. Attention might advisably be called to the fact that although the foregoing affidavit refers to adverse possession the statute refers only to possession and it would appear such limited reference is sufficient.
I. A merchantable or marketable title has been defined as one that later can be sold to a reasonable purchaser, Siedel v. Snider, 241 Iowa 1227, 1229, 44 N.W.2d 687. See also Holliday v. Arthur, 241 Iowa 1193, 1196, 44 N.W.2d 717, 24 A.L.R.2d 1302; Bristow v. Pagano, 238 Iowa 1075, 1079, 29 N.W.2d 423; Smith v. Huber, 224 Iowa 817, 828, 277 N.W. 557, 115 A.L.R. 131, and cases cited; Cappel v. Potts, 192 Iowa 661, 668, 185 N.W. 148.
II. Sec. 614.17, 1954 Code, I.C.A., although of a limitation nature, is more than a statute of limitations. Clearing Land Titles, Basye (1953) Sec. 172, p. 262. Its purpose is to give effect and stability to record titles. Lane v. Travelers Insurance Co., 1941, 230 Iowa 973, 979, 299 N.W. 553; Appleby v. Farmers State Bank, 244 Iowa 288, 296, 56 N.W.2d 917.
Iowa was the first of several states to pass a statute which bars all claims to real property arising prior to a stated date without regard to the nature of any legal condition on the part of a possible claimant. This initial legislation was enacted in 1919. Chapter 270, Sec. 1, 38 General Assembly. Since that time the states of Illinois, Indiana, Wisconsin, Minnesota, Michigan, South Dakota, Nebraska and North Dakota, in the order named, have enacted legislation barring all interest and claims growing out of claimed irregularities in titles to real property prior to a stated date. Clearing Land Titles, Basye (1953) pp. 265-289. It will thus be observed there is a growing tendency to effectively bar potential claims arising out of irregularities in a chain of title to real property where no claim is filed based on said irregularity by the date stated in a particular statute.
III. In order to comply with the Iowa statute and to make possible a reliance upon it the required affidavit must be filed by the owner...
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