Wenger v. Thompson

• Decision Date: 16 November 1905
• Citation: 128 Iowa 750,105 N.W. 333
• Parties: WENGER v. THOMPSON ET AL.
• Court: Iowa Supreme Court

128 Iowa 750

105 N.W. 333

WENGER

v.THOMPSON ET AL.

Supreme Court of Iowa.

Nov. 16, 1905.

Appeal from District Court, Clarke County; H. M. Towner, Judge.

Action to quiet title to real estate. From a decree in favor of plaintiff, a portion of the defendants appeal. Affirmed.Tallman & Crist and Stivers & Slaymaker, for appellants.

Temple, Hardinger & Temple, for appellee Wenger.

Jas. H. Jamison, for other appellees.

BISHOP, J.

The real estate in question consists of a farm of about 220 acres in Clarke county. In this petition plaintiff recites that he is the owner of the said farm in fee simple; that he holds the same in lawful, exclusive, and adverse possession, and that he and those under whom he claims have so held under claim of right and color of title for more than 20 years; that he has paid taxes, made improvements, etc. It is then averred that, as plaintiff is informed and believes the defendants George O. Thompson, F. A. Thompson, and R. E. Thompson claim some interest in said real estate, and that such claim, as he is informed, is based upon the following facts: That in the year 1878 J. H. Thompson died, testate, seised of said real estate, and leaving surviving him Elizabeth L. Thompson, his widow--who is also made a party defendant in this action--and said defendants first above named, his children. The will of said J. H. Thompson is set out and reads as follows: “I give and bequeath to my wife, Elizabeth L. Thompson, all real estate described as follows: [Here follows a description of lands, which includes with others the lands in controversy]. Also all of my personal property of every kind, of which I may die seised, for her own use, and for the maintenance and education of my children during her natural life, and after her death all said property, both real and personal, then remaining in her possession, or the proceeds of said property, to be equally divided, share and share alike, between all of my children then living. Lastly, I appoint Elizabeth L. Thompson executrix and William J. Hamilton executor of this my last will, with full power and authority to sell and convey any or all of said property to pay all of my just debts, and to apply all the remainder of the proceeds of said property to the maintenance of the family.” It is conceded that said will was duly admitted to probate in said county. It is then alleged that in March, 1883, Elizabeth L. Thompson conveyed the lands in controversy by warranty deed to William J. Hamilton, who entered into possession and continued therein until March, 1900, when he sold and conveyed by warranty deed to R. M. Lewis. In June, 1900, Lewis sold and conveyed by warranty deed to R. W. Meyer and J. E. Barnard, who in May, 1901, and by like deed, conveyed to Elmer E. Barnard; that the latter, by like deed, and in July, 1901, conveyed to Mattie F. Barnard, who, in 1903, with her husband, J. E. Barnard, conveyed by like deed to plaintiff. The said Hamilton is also made a defendant, and the decree went against him, and likewise against the said Elizabeth L. Thompson, by default for want of appearance. The defendants George O., F. A., and R. E. Thompson appeared and pleaded jointly, they admit the right of plaintiff to use and occupy the lands during the continuance of the life of their mother, but deny that plaintiff has any further or other interest. Pleading further, and as a basis for affirmative relief, they exhibit the will of their father, and assert that thereunder they are the owners of the fee of the lands, and demand that their title be quieted. The defendants Barnard and Lewis answered, admitting the conveyances made to and by them, and in cross petitions against their codefendants prayed that the relief demanded by plaintiff might be granted.

Upon the trial it was shown that at the time of the death of John H. Thompson the farm was incumbered by two mortgages. It was in a low state of cultivation, and the improvements thereon out of repair. Upon the settlement of the estate, which was in the year 1881, the final report filed made it appear that all the personal property had been exhausted in payment of unsecured debts filed against the estate. It is conceded that the report was approved, and the executrix and executor discharged. Elizabeth L. Thompson continued in the occupancy of the farm with her children; the eldest one being thirteen years old, and the youngest one three years old. The circumstances of the conveyance by Mrs. Thompson to Hamilton in the year 1883 were that the mortgages had become due and she could not pay them, and that she was considerably in debt otherwise. She was greatly worried, and believed that she would be unable to pay out and save the farm. In this situation she sought a conference with Hamilton, who was her brother, and this resulted in an agreement between them that she should convey the farm and a considerable portion of the stock and grain on hand to him, in consideration of which he should convey to her a near-by farm, owned by...