Welsh v. McGrath

• Decision Date: 15 December 1881
• Citation: 10 N.W. 810,59 Iowa 519
• Parties: WELSH, BY HER NEXT FRIEND, v. MCGRATH.
• Court: Iowa Supreme Court

59 Iowa 519

10 N.W. 810

WELSH, BY HER NEXT FRIEND,

v.MCGRATH.

Supreme Court of Iowa.

Filed December 15, 1881.

Appeal from Des Moines circuit court.

The plaintiff alleges, in substance, in her petition, that she is a minor, the adopted child and sole heir of William Welsh, deceased; that William Welsh died July 27, 1870, seized of lots 18 and 19 in Cameron's addition to the city of Burlington, which property was the homestead of decedent and of this plaintiff, his daughter, and has ever since been used by plaintiff as her homestead, with her adopted mother, Ann McGrevy, the former widow of said Welsh, deceased; that said Ann Welsh, widow, afterwards married one Hugh McGrevy, but continued to occupy said lots and the house as her homestead and that of this plaintiff; that the defendant, Mary McGrath, claims to have some right or interest in said lots, founded upon the fact that about May 20, 1874, said Ann McGrevy, former widow of William Welsh, and Hugh McGrevy, her husband, made a mortgage upon said property to the defendant, upon which a decree of foreclosure was entered, execution was issued, and a sale was made to the defendant; that the said Ann and Hugh McGrevy had no mortgageable interest in, nor right to convey, said property, and that the mortgage and sale pursuant thereto are void, as against the heirship, title, and homestead rights of the plaintiff. The plaintiff prays that the decree of foreclosure and proceedings thereunder may be set aside and plaintiff's title confirmed.

The defendant filed answer admitting that plaintiff is the adopted child of William Welch, deceased, but denying that the property in question was his homestead, and denying the other main allegations in the petition, and averring that in the year 1874 Ann McGrevy became the absolute owner of the property described; that defendant loaned money to her thereon; and that the mortgage given therefor has been foreclosed and the land sold thereunder, and that she holds the sheriff's certificate. The defendant also filed a cross-bill setting forth an abstract of title, showing the following facts: (1) That in October, 1872, George Jeffreys commenced an action in the Des Moines circuit court against Ann Welch and Charles O'Brien, to foreclose a mechanic's lien on the real estate in controversy. Original notice was personally served on both defendants October 28, 1872; both defendants answered November 15, 1872; and judgment in favor of plaintiff was rendered February 21, 1873, $59.57, and a mechanic's lien established. (2) On the above judgment the property was sold May 13, 1873, to J. W. Heisey and Charles O'Brien. The certificate of purchase was assigned to Mary McGrath, and by her to Ann McGrevy, to whom a sheriff's deed was duly executed, which was filed for record and recorded May 13, 1874. (3) On the fifteenth of May, 1874, Ann McGrevy and her husband executed to the defendant, Mary McGrath, a mortgage on said lots, to secure the sum of $400, which mortgage was duly foreclosed May 30, 1878, and, upon execution issued thereunder, the property was sold to Mary McGrath, August 13, 1878. The cross-bill prays that the property be quieted in defendant.

To this cross-bill the plaintiff filed a replication, as follows:

“(1) Averring that the title to said property, derived by and through George Jeffreys, is wholly null and void as to this plaintiff, for the reason that the work for which said lien was claimed was all done and completed on a contract prior to the second day of April, 1870, before the death of said William Welsh; that said Welsh died July 27, 1870, leaving plaintiff, a duly-adopted child, sole heir at law of said William Welsh; that no claim for a lien thereunder was filed until April 16, 1872, more than two years after the completion of the work; and that said claim for a lien was not filed against this plaintiff, as owner of said property, but against ‘William Welsh's estate,’ and no other lien or claim was filed by him. [Exhibit showing claim filed with clerk, as part of the reply.] No notice of the claim for mechanic's lien was ever served upon plaintiff, either in person or her guardian. (2) The petition for the enforcement of said lien was not filed until October 26, 1872, more than two and one-half years after the work was done, and more than two years after said Welsh's death; and in such proceedings for foreclosure of said mechanic's lien this plaintiff was in no way made a party or notified thereof; that said proceedings were only against Charles O'Brien and Ann Welsh, as administrators of said William Welsh's estate, and upon this proceeding to foreclose said mechanic's lien alone the defendant's title above set up is based. Therefore, all of said proceedings to establish said mechanic's lien and the sale thereunder were insufficient to divest the plaintiff's title, she being at the time a minor, only six years old, and did not estop her now asserting her right. A copy of the petition, entitled ‘Lien Foreclosure,’ is annexed as an exhibit. (3) The Ann Welsh mentioned in defendant's abstract, to whom the sheriff's deed was made, is the same Ann Welsh who was administratrix of the estate of William Welsh, deceased, and who had a homestead interest in the said realty, and was incapacitated by reason of her said relationship to said estate, and the plaintiff and the property, to acquire a title thereto adverse to plaintiff; and the defendant, McGrath, had full notice of all said facts when she took the mortgage. (4) All other allegations of cross-bill are denied.

Exhibit claim against ‘Wm. Welsh's estate,’ in favor of George Jeffreys, 1870, April 2, showing balance due of $58.57. Sworn to and marked, ‘Filed on the sixteenth day of April, 1872. WM. GARRETT, Clerk, D. C.’

EXHIBIT.

‘Lien foreclosure’ sets forth petition of George Jeffreys to foreclose above lien, as follows: George Jeffreys v. Ann Welsh and Charles O'Brien, Administrators of estate of Wm. Welsh, deceased. Petition in usual form, claiming foreclosure of above lien claim. Marked, ‘Filed October 26, 1872. WM. GARRETT, Clerk, D. C.’

EXHIBIT.

Notice in above-entitled cause addressed to said Ann Welsh and Charles O'Brien, as administrators of Wm. Welsh's estate, to a term of circuit court to be held November 11, 1872.”

To this replication the defendant demurred as follows: “(1) The facts stated constitute no defence to said cross-bill. (2) The fact that the mechanic's lien of Jeffreys was not filed till after the death of Wm. Welsh, is no defence. (3) The plaintiff is estopped, by the judgment and decree establishing and foreclosing the Jeffreys mechanic's lien, from denying that he, Jeffreys, was entitled to such lien. (4) No facts are shown to justify this court in interfering with the title which defendant has asserted in her cross-bill. (5) Ann Welsh's demand that the property be sold, subject to redemption, is immaterial, she not having offered to redeem. (6) The facts in defendant's cross-bill show that Ann Welsh, at the time she took the sheriff's deed, was not acting in a fiduciary capacity.”

The court sustained this demurrer. The plaintiff declined to further plead, and the court decreed that the defendant is the owner of the property in controversy, and entitled to a deed from the sheriff therefor. The plaintiff appeals.

P. Henry Smyth, T. W. Newman, and D. Y. Overton, for appellant.

Hall & Huston and T. J. Trulock, for appellee.

DAY, J.

1. The appellant claims that the lien, to be valid, should have been claimed against the owners of the property at the time the lien was filed, and not against the estate of William Welsh. The appellant relies upon Robbins v. Burns, 34 N. J....