Tice v. Derby
| Citation | 13 N.W. 301,59 Iowa 312 |
| Parties | TICE v. DERBY ET AL |
| Decision Date | 20 September 1882 |
| Court | Iowa Supreme Court |
Appeal from Des Moines Circuit Court.
ACTION to quiet title to a certain lot in the city of Burlington. The plaintiff avers that he is the owner thereof, subject to a life estate in an undivided two-thirds thereof, during the life of his mother, formerly Lucinda Tice, now Lucinda Burkhart. The defendants, Mark Derby and Laura C. Derby claim to own the whole lot.
The court found that the plaintiff owned the lot subject to an estate for life in one undivided third thereof, such estate being for the life of Lucinda Burkhart; that the defendant Laura C. Derby, is the owner of the estate for life, and is entitled to be allowed for certain improvements made on the premises, and the amount of certain taxes which had been paid; and the court decreed that an accounting be had, and the value of the property be ascertained, and the value of the improvements and the estate for life, and that the taxes which had been paid be apportioned, and the property be sold and the proceeds be applied, first, in payment of the costs of the action and the balance be so divided as to pay Laura C. Derby so much as should appear to be her proportionate share for the estate for life, the improvements, and taxes paid by her, and those under whom she claims, after deducting such amount as would be the share of the rents and profits belonging to the plaintiff. From this decree both the plaintiff and the defendant, Laura C. Derby, appeal.
REVERSED.
P. Henry Smyth & Son, for plaintiff.
Thomas Hedge, Jr., for defendant.
The property originally was owned by the plaintiff's father, one John P. Tice, who died intestate, leaving surviving him his wife Lucinda, now Lucinda Burkhart, and two sons, the plaintiff, and John P. Tice, Jr. The latter afterward died and the lot became the property of the plaintiff and his mother, Mrs. Burkhart. The plaintiff disappeared and was not heard from for many years. The lot was unimproved and yielded no income. Mrs Burkhart was poor and unable to pay the taxes, and suffered the lot to be sold for taxes. One Caroline Derby, the mother of the defendants, became the owner of the tax certificate. In the meantime, Mrs. Burkhart, supposing her son, the plaintiff, to be dead, and herself the sole owner of the lot, sold it as such sole owner, and executed a deed whereby she undertook to make a conveyance of it. Such interest as she had the power to convey was acquired by Caroline Derby, and it appears that it was acquired while Mrs. Derby held the tax certificate, and before redemption expired. Mrs. Derby afterward obtained a tax deed, and supposing that she was sole owner of the lot built a dwelling house upon it. She afterward died, and the defendant, Laura C. Derby, her daughter, has acquired her interest by inheritance.
She insists that the plaintiff was divested of his interest by his mother's deed. Her position is based upon certain allegations, said to be supported by the evidence; that the plaintiff in disappearing and remaining unheard from so long, and under the circumstances shown, allowed his mother's grantee to purchase and pay for the lot in good faith, and under the just supposition that he was dead, and that he ought not now to be heard to aver to the contrary.
But we are all agreed upon a separate reading of the evidence, that while it appears clearly enough that Mrs. Burkhart's grantee purchased and paid for the lot in good faith expecting to get a clear title to the whole of it, the plaintiff's conduct was not such as to create an estoppel against him. Mrs. Burkhart's deed, then, did not have the effect to convey the plaintiff's interest, and Caroline Derby became a tenant in common with the plaintiff, and was such at the time she obtained her tax...
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