Willcuts v. Rollins

• Citation: 52 N.W. 199,85 Iowa 247
• Parties: WILLCUTS ET AL. v. ROLLINS.
• Decision Date: 18 May 1892
• Court: Iowa Supreme Court

85 Iowa 247

52 N.W. 199

WILLCUTS ET AL.

v.ROLLINS.

Supreme Court of Iowa.

May 18, 1892.

Appeal from district court, Sac county; J. P. CONNER, Judge.

This is an action in equity, and it involves the title to an undivided half of certain land in Sac county. The plaintiff claims under the patent title, and the defendant relies upon a tax title. There was a full hearing on the merits, and a decree for the plaintiff and other parties who intervened in the action, but whose interests are not adverse to the plaintiff, and are adverse to the defendant. The defendant appeals.Ed. R. Duffie, for appellant.

Wm. Milchrist, Elwood & Zane, and Mason & Thomas, for appellees.

ROTHROCK, J.

It is unnecessary to take time or space to set out the interests claimed by the interveners. They claim in the same right as the plaintiff, and we will consider the questions as between the plaintiff and the defendant. The plaintiff claims to be the patent title owner. It is conceded that he is the owner of an undivided half of the land. It was determined by the court in Bowen v. Duffie, 66 Iowa, 88, 23 N. W. Rep. 277, which case involved the title to this land, that Bowen was the owner of the undivided half thereof. Bowen was the grantor of the plaintiff. The decision in that case was based upon the ground that the land had been redeemed from the tax sale, and that there had been no former adjudication of the validity of the tax title. It now appears that the redemption was made by one who had no right to redeem, and this case depends upon other considerations, which we will now proceed to consider.

We have said that the plaintiff claims under the patent title. It is claimed by appellant that the evidence does not show a chain of title by successive conveyances from the United States to the plaintiff. We do not think this position is correct. It appears that pending the action in the district court the courthouse was burned, and much of the evidence on file was destroyed. The evidence was substituted by agreement of the parties, and it shows unmistakably, by the agreement and reference to the evidence, that the plaintiff is the owner of the government title. We need not particularize or set out the evidence on this question. It abundantly sustains the claim of the plaintiff that he is the owner of the patent title.

2. Thomas Wray became the owner of the land in the year 1870, and in the month of September, 1872, he died without issue, and leaving Mirvina Wray as his widow. She conveyed the land to one Nickum, and by successive conveyances Fannie Bowen became the owner of the widow's interest in July, 1879. It was upon this interest that the case of Bowen v. Duffie, supra, was founded; and it was for the reason that the widow took but an undivided half of the land, by dower and descent from her husband, that but one half was recovered in the cited case. While that suit was pending, and on the 23d day of March, 1880. Fannie Bowen conveyed the land to Enos Willcuts, the plaintiff herein. At that time the land was unoccupied and uncultivated prairie, and was not and had not at any time been in the actual possession of any one. About June 1, 1890, Willcuts entered into the actual possession of all of the land, claiming title to the same, and has continued to maintain actual possession at all times since that date. The conveyances to Fannie Bowen, and from her to Willcuts, were by deeds of general warranty. In the year 1882 the brothers and sisters of Thomas Wray conveyed the undivided half of the land, which they inherited from Thomas Wray, to Fannie Bowen. This conveyance to Fannie Bowen made good her warranty to Willcuts, and he became the owner of the undivided half, not...