Withrow v. Walker

• Court: Iowa Supreme Court
• Writing for the Court: ROBINSON, J.
• Citation: Withrow v. Walker, 81 Iowa 651, 47 N.W. 893 (Iowa 1891)
• Decision Date: 24 January 1891
• Parties: SAMUEL P. WITHROW, Appellant, v. LILLIE M. WALKER et al., Appellees

47 N.W. 893

81 Iowa 651

SAMUEL P. WITHROW, Appellant, v. LILLIE M. WALKER et al., Appellees

Supreme Court of Iowa, Des Moines

January 24, 1891

Appeal from Story District Court.--HON. S. M. WEAVER, Judge.

THIS is an action to recover the possession of real estate, and to quiet the title thereto in the plaintiff. The defendants claim to own and to be entitled to the possession of the land, and ask, by way of cross-petition, that their title be confirmed and quieted as against plaintiff. Judgment was rendered in favor of defendants as prayed. The plaintiff appeals.

AFFIRMED.

J. W Bull, for appellant.

J. L Dana, for appellees.

OPINION

ROBINSON, J.

The land in controversy in this action consists of eight hundred acres, situate in the counties of Adair, Greene and Story. On the eighteenth day of March, 1857, George H. Reed, in whom the title to the land was then vested, executed a mortgage thereon, and on two hundred acres of land in Hardin county which he also owned, to John W. Cooper. The mortgage was given to secure the payments of promissory notes, which amounted, in the aggregate, to fifty-five hundred and forty dollars, and was transferred on the day of its date to the Oxford Female College, at Oxford, Ohio. It was recorded in Story county on the tenth day of June, 1857; in Hardin county on the sixth day of July, 1857; in Greene county on the twenty-seventh day of August, 1860; and in Adair county on the next day. On the seventh day of April, 1857, Reed conveyed the land described in the mortgage to plaintiff. The consideration named in the deed was seven thousand dollars. At that time, Reed was owing to plaintiff the sum of ten thousand dollars, and the conveyance was made on account of that indebtedness. On the twenty-fourth day of April, 1862, the Oxford Female College commenced an action in the district court of Greene county for the foreclosure of the mortgage, making Reed and his wife parties defendant, and serving the original notice by publication. In August, 1862, judgment was rendered in favor of the college for fifty-four hundred and twenty-nine dollars, and a decree foreclosing the mortgage was entered, Reed and wife not appearing. Executions were issued on the judgment, the land was sold thereunder to the college, and sheriffs' deeds executed therefor, and recorded, On the thirtieth day of November, 1868, the college conveyed all the land sold under the degree of foreclosure, including that in Hardin county, to Robert D. Morris. Morris was for a number of years president and financial agent of the college. He died in the year 1882. The record shows that the taxes on the land in question for the year 1857, and all subsequent years, were paid by Morris and his executors. In February, 1878, he hauled lumber for yard and stable on the Story county land, and, in March, April, May and June of that year, broke one hundred and eighty acres of it. During the next year, he broke twenty acres, and, during the year 1884, he broke seventy acres. After he received the deed from the college, in 1868, he at all times claimed to be the owner of the land until his death, and, since that time, it has been claimed by his heirs. All the persons who have claimed to be interested in the land, as owners, since the year 1857, have been non-residents of Iowa. Prior to the year 1878, the land was unimproved prairie, and not in the actual possession of anyone. The only possession plaintiff ever had was that which the deed to him would confer. In 1864, plaintiff commenced an action in the district court of Story county, to quiet his title to the lands in question, making Cooper, Reed and Morris parties defendant. They appeared, and filed answers, but the case was dismissed by the plaintiff without a trial upon the merits. In the year 1870, plaintiff commenced action in the same court, making Morris defendant, and asking to redeem from the mortgage foreclosure. That was dismissed in the year 1871, on account of the failure of the plaintiff to file a cost bond. A third action commenced, in the year 1887, against J. C. Lee, a tenant, to recover the land in Story county, was dismissed for the same reason. The defendants in this action are the heirs of Robert D. Morris, deceased, and their tenants.

Plaintiff claims that, at the time he received the deed from Reed, he had no knowledge of the mortgage to Cooper, that he was not made a party to the foreclosure proceedings, and had no knowledge of them; that the debt secured by the mortgage is barred by the statute of limitations of the state of Ohio, and of this state; and that he is entitled to an accounting. He offers to pay all taxes that have been paid by Morris and defendants, and demands an accounting and judgment for the amount which the rents exceed the taxes. The deed of Reed to plaintiff was recorded in Story county in July, 1861. The acknowledgment, however, was so defective that the record of the instrument did not give constructive notice at the time the foreclosure proceedings were commenced. It is insisted by appellant that, although the acknowledgment was defective when recorded, yet the college had actual notice of the existence of the deed; that the acknowledgment and record were legalized by subsequent acts of the general assembly; that the holder of the legal title is necessary to a foreclosure suit, and that a valid decree of foreclosure cannot be rendered until he is made a party; that plaintiff was not made a party to the foreclosure proceedings of 1862, and Reed was made a party only by publication, and failed to appear; therefore, that the court acquired no jurisdiction to render a decree which could affect the title to the land; that Morris and his heirs acquired possession only as mortgagees, and that a possession so acquired and held cannot be adverse to the owner of the fee; that plaintiff has never been challenged to assert or defend his title, and can now claim it.

We do not find it necessary to determine all the questions presented by appellant. It is contended by appellees that the facts disclosed by the record are such that appellant should be estopped from asserting title against them, and we think the claim is well founded. As already stated, plaintiff took the deed from Reed on account of an antecedent debt. He parted with nothing of value at that time, released no security, and entered into no new undertaking. The testimony as to the time when he received the deed is conflicting, some of it tending to show that he received it after the mortgage had...