Weise v. Grove

• Decision Date: 13 April 1904
• Citation: 99 N.W. 191,123 Iowa 585
• Parties: HERMAN WEISE, Appellant, v. D. M. GROVE, Appellee
• Court: Iowa Supreme Court

99 N.W. 191

123 Iowa 585

HERMAN WEISE, Appellant, v. D. M. GROVE, Appellee

Supreme Court of Iowa, Des Moines

April 13, 1904

Appeal from Story District Court.--HON. J. H. RICHARD, Judge.

ACTION in equity to rescind and set aside conveyance of land by defendant to the plaintiff, and for damages. The district court dismissed the bill, and plaintiff appeals.

Reversed.

Dale & Harvison and E. H. Addison for appellant.

J. F Martin and J. L. Stevens for appellee.

OPINION

WEAVER, J.

The land, the conveyance of which is here in controversy, is a part of the numerous tracts involved in a litigation which began about the year 1877, and had the attention of this court in Am. Em. Co. v. Fuller, 83 Iowa 599, 50 N.W 48; American Emigrant Co. v. Rogers, 83 Iowa 612, 50 N.W. 52; American Emigrant Co. v. Long, 105 Iowa 194, 74 N.W. 940. The title which defendant undertook to convey to plaintiff was supposed to be derived from the so-called "swamp-land grant," and with the similar title to other tracts was contested in a series of cases begun at or near the date above mentioned. In the trial court the swamp-land claim was at first confirmed, and in each case an appeal was taken to this court. By a stipulation of counsel the trial of such appeals was suspended in all cases except that of the American Emigrant Co. v. Rogers Locomotive Works, which was to be prosecuted as a test case. Final decision of the last-named case was not reached in the Supreme Court of the United States until December 7 1896, and the result therein was the invalidation of the swampland title. 164 U.S. 559, 17 S.Ct. 188, 41 L.Ed. 552. Notwithstanding the stipulation above mentioned, the party claiming title under the swamp-land grant conveyed the land involved in this action to one H. E. Long, who in turn conveyed it to the defendant, both conveyances being made while said appeal was pending and undetermined. The negotiation of the transfer from Long to defendant was conducted by one Gifford. It appears in evidence that Gifford was also directly interested with defendant in the purchase, the latter agreeing in a separate writing to convey one-half the land to the former on demand, or to pay to him one-half the proceeds of the sale thereof. The abstract of title on which the purchase was made disclosed that an appeal had been taken from the decree which confirmed the swamp-land title, but made no mention of the stipulation to which we have referred. After the decision of the test case the party representing the swamp-land title in the case directly involving the lands now in question sought to escape the effect of the stipulation by denying the same, and denying the authority of counsel to enter into such an agreement; but the contention did not prevail, and upon final hearing in this court the stipulation was upheld, and the swamp-land title held to be invalid. Am. Em. Co. v. Long, supra. Prior to this time the defendant had conveyed the two forty acre tracts to the plaintiff by deed of special warranty under date of December 17, 1895, pursuant to a sale negotiated by Gifford. Plaintiff, not being able to obtain possession under said deed, applied to defendant to make good his title, and thereupon, in February, 1896, defendant and Gifford instituted a suit in plaintiff's name in the district court to quiet the title in him. This suit resulted adversely to the plaintiff, the hostile title being fully established and confirmed. Olson v. Leibpke, 110 Iowa 594, 81 N.W. 801. Upon the conclusion of this litigation establishing the worthlessness of the title conveyed to him, the plaintiff instituted this action May , 1901. Stated briefly, he alleges that defendant and his agent, Gifford, sold him the land, representing that defendant held it by a good title and would convey it to him by warranty deed, and that, relying on said representations, he made the purchase, paying therefor the sum of $ 1,367.33 in securities, and executing his promissory note and mortgage to secure payment of the remainder, $ 732.67. He alleges the falsity of the representations, and asks for a rescission of the sale, for a return of his money, and for the costs paid by him in the suit instituted in his name by the defendant. The defendant admits the conveyance and the receipt of the consideration as charged, but denies all allegations of misrepresentation and pleads the statute of limitations. He also sets up a counterclaim on the promissory note above mentioned. Other allegations made in the pleadings are not material to the determination of this appeal, and we do not stop to state them.

The trial court, after hearing all the evidence, arrived at the conclusion that Gifford was a necessary party to the record, and on its own motion entered in the record what is called a "preliminary decree," requiring plaintiff to amend and bring in said party by notice, or upon failure to comply with said order the petition should be dismissed. Plaintiff declining to comply, the petition was dismissed at plaintiff's costs. The counterclaim was also dismissed on the merits, the note being held to be without consideration.

I. In our judgment, there was no such defect of parties as justified the court in requiring the plaintiff to amend upon penalty of dismissal. Had this been an action to settle or adjust the title to the land, and it appeared that Gifford owned a legal or equitable interest therein, the propriety of requiring him to be impleaded would be evident. But the question of title had passed the stage of controversy. The fact that neither defendant nor Gifford had title of any kind, and that the deed from defendant to plaintiff conveyed no title whatever, was settled before this suit was begun. Having assumed to convey the land, and received a valuable consideration therefor, the simple proposition here presented is whether the transaction is of such character, or is attended with such circumstances, that the court will order it rescinded and the plaintiff's money refunded. Defendant alone held the so-called title. He alone conveyed it, and the fact that by agreement between himself and Gifford he held an undivided half in trust for the latter and in execution of such trust divided the proceeds of the sale with him, is wholly immaterial. The action is...