Van Ormer v. Harley

• Decision Date: 14 May 1897
• Citation: 102 Iowa 150,71 N.W. 241
• Parties: VAN ORMER v. HARLEY.
• Court: Iowa Supreme Court

102 Iowa 150

71 N.W. 241

VAN ORMER

v.HARLEY.

Supreme Court of Iowa.

May 14, 1897.

Appeal from district court, Ida county; Z. A. Church, Judge.

Action in equity for the partition of real estate, and for an accounting. There was a hearing on the merits, and a decree for the plaintiff. The defendant appeals. Modified and affirmed.Warren & Johnston, for appellant.

F. F. Kiner and C. W. Rollins, for appellee.

ROBINSON, J.

In the year 1863, Amos Van Ormer, a resident of the state of Pennsylvania, died intestate, seised in fee simple of a tract of 120 acres of land in Ida county, in this state. He had survived his wife, and his only heirs were his children, who were the plaintiff, and four daughters, named Hannah, Jane, Lucinda, and Mary. In April of the year 1875, Jane, Lucinda, and Mary, then married, and their husbands, executed to Jacob Feghtly, a resident of the state of Illinois, a warranty deed, which purported to convey to him “the undivided three-fourths” of the land in question. In the same and subsequent years, the heirs of Hannah, who had married and was then dead, executed to Feghtly deeds which purported to convey in the aggregate an undivided one-fourth of the land. In the year 1882, Feghtly caused the land to be broken, and during the next year erected thereon a dwelling house, barn, granary, and other improvements, at a cost of about $800. In 1887 he died, testate, having devised the land in question to his sister, Sarah Sigman, and to his niece, the defendant, in equal shares. In the year 1884 the land was sold for delinquent taxes, and in June, 1889, a tax deed therefor was issued. In September, 1890, Sarah Sigman executed to the defendant a conveyance, which purported to convey an undivided one-half of the land; and in September, 1894, the defendant acquired the interest which had been conveyed by the tax deed. The plaintiff claims that he has never parted with his interest in the land, and that he is the owner of an undivided one-fifth thereof. He asks that his share be set apart; that he have an accounting of the rents and profits of the land for the last 12 years; and for general equitable relief. The defendant denies the alleged ownership of the plaintiff, and his claim that he never parted with his interest in the land, and, by way of counterclaim, asks, in case he is found to be entitled to the share he claims, that he be required to pay to her one-fifth of the amount expended by herself and her grantors for taxes and improvements. The defendant also avers that the alleged right of the plaintiff to rents and profits which accrued prior to the year 1888 is barred by the statute of limitations, and that his alleged right to an interest in the land is also barred, for the reason that she and the persons through whom she claims had been in continuous and actual possession of the land, under a claim of right and title to all of it adverse to the plaintiff, since the year 1881. The defendant also alleges that, prior to the death of Amos Van Ormer, the plaintiff, in consideration of the conveyance to him of the land in Pennsylvania, executed to his father a release of all right to or interest in real estate of which his father should die seised; that the interest of the plaintiff was extinguished by the tax deed; that the plaintiff knew of the conveyance to Feghtly, and that he took actual possession of the land in the year 1882; that for more than 30 years the plaintiff did not contribute anything to the payment of the taxes on the land, nor assert any interest therein, or make any claim for rents prior to the commencement of this action; and that at all times he knew of and acquiesced in the conveyances and possession of the land. In reply, the plaintiff admits the issuing of the tax deed, and avers that it was obtained for the purpose of defrauding him, and that it is void. The district court decreed the plaintiff to be the owner of the undivided one-fifth of the land. and that his share be partitioned and set off to him, and that he recover one-fifth of the rents and profits of the land for the period of 10 years, including the year 1894, fixed at the sum of $600, with interest thereon at the rate of 6 per cent. per annum, amounting to $198. The judgment for the amount stated was made a lien upon four-fifths of the land, as the share owned by the defendant. No allowance was made for taxes paid or improvements made.

1. The appellee has filed a motion to strike the evidence from the abstract, and to affirm the decree of the district court, on the ground that certain exhibits were removed from the transcript after it had been prepared. It appears that a transcript was made for the use of the district court, to which exhibits claimed to be valuable were attached, and that, after the district court had used the transcript, the exhibits were detached, and placed in a safe, to prevent loss. We are unable to determine from the evidence submitted to us whether the transcript had been made a part of the record when the exhibits were removed, but, if it had, the act of an attorney in removing them without authority from the court or adverse party would have been a most reprehensible mutilation of an official record. However that may have been, it is shown that the exhibits were inserted in their proper places in the transcript, after which it was duly certified, and, as submitted to us, it appears to be regular and sufficient. If it is not, steps to correct it should have been taken in the district court. The motion of the appellee must be overruled.

A motion of the appellant to strike an additional abstract filed by the appellee in view of the disposition we find it necessary to make of the case is unimportant, and need not be considered.

2. The record contains much incompetent and immaterial evidence, to which objection was duly made, and which will not be given any weight in the consideration of the case. The competent and relevant evidence establishes facts substantially as follows: In the year 1862, Amos Van Ormer conveyed to the plaintiff 85 acres of land in Juniata county, in the state of Pennsylvania. When the father died, the next year, he still owned about 400 acres of land in that county; and, soon after his death, proceedings were commenced in the orphans' court of Juniata county for a partition of the land. As a result of the proceedings, the land was divided and sold, and the proceeds were distributed among the heirs of the decedent, excepting the plaintiff. He knew of the proceedings, but did not participate in them, nor receive any part of the property distributed. The reason he gives for his nonparticipation is that some of his sisters thought he ought to be satisfied with what he had; that he was not well, and did not wish to quarrel with them, and therefore let them have the proceeds. There is some evidence to the effect that, when he received the conveyance for the 85 acres as stated, “he executed and delivered to his father a release of his share in any and all other real estate owned by his father”; but that is denied, and the testimony offered to prove the release is not satisfactory, and in some respects is improbable. Moreover, there is much in the record to contradict it. We are of the opinion that the sisters of the plaintiff demanded that the conveyance made to him be treated as an advancement equal to his share of the land in Juniata county, which his father owned at death, and that he acquiesced in their demands. He did not pay anything for the land, but he claims that he had intended to move away from home, and that, to induce him to remain, his father promised to give him the land for a home if he would erect a building upon it, and otherwise improve it, all of which he did. There is nothing in the record to show any judicial determination that the conveyance was an advancement. But the fact that no consideration was paid for the conveyance may be regarded as evidence that it was intended as an advancement, which is corroborated by the nonparticipation of the plaintiff in the distribution of the Juniata county land. If it be conceded that the conveyance should be treated as an advancement, it does not follow that the plaintiff should not recover in this action. The value of the estate left by Amos Van Ormer is not shown, nor does it appear whether advancements were made to any of the sisters. The value of the Juniata county land is not proven. If that conveyed to the plaintiff, and that which the decedent left to his heirs, were of the same value per acre, the plaintiff did not receive his share of the land in that county. It is not shown that he paid any taxes on the land in question, nor that he demanded any share of the rents derived from it prior to the commencement of this action; but it appears that he at all times claimed an interest in the land, and it is not shown that he ever released or conveyed that interest, and it is shown that the other members...