Donaho v. Smith , 50 Iowa 218 ( 1878 )

Rothrock, Oh. J.

1. uses adjudicata: dower: estoppel. I. We think the demurrer to the second amendment to the answer was properly sustained. The facts therein set forth are pleaded as an adjudication , . A 0 of the rights of Electa E. Donaho in the land in controversy. That said record is an adjudication in favor of this defendant cannot be claimed, because he was not a party n.or was he privy thereto. The widow may well have instituted her proceeding for dower in the lands to which her husband had the legal title, without in any manner prejudicing her equitable rights in lands held by other persons. The most that can be claimed for the facts pleaded in the second amended answer is that they are acts of the widow tending to show that the claim now made that her husband was .the equitable owner of the land in controversy is not true, and are evidence against her to be considered in connection with the other evidence in the case.

„ take3' administrator. II.' For the sake of brevity we will give the substance only of the material facts found by the referee upon which he recommended a decree for the plaintiffs. It apPears therefrom that in 1854 Thomas Donaho purchased of one S types one hundred and twenty acres of land, and paid the purchase price, but directed that the conveyance be made to his brother, Allen S. Donaho. The evidence does not show who owned the purchase money of the land, but the two brothers were equally interested in the purchase. The Donaho brothers divided the lands so that Allen S. was to own in severalty that part lying east of the Nodaway river, and Thomas was to own in severalty that part lying west of said stream. The land in controversy is sixteen and seven one-hundredths acres lying west of. the river. Thomas Donaho took actual possession of this land in 1856, and held such possession up to the making of the administrator’s deed in May, 1868. Allen S. Donaho never made any conveyance of the land in controversy to his brother Thomas. Allen S. died in 1860. In February, 1868, Thomas Donaho was appointed administrator of the estate of his brother Allen. On the same day of his appointment he filed an application in the county court for the sale of the real estate belonging to said estate, including the land -in controversy in his petition.

The order of appraisement, and the report of the appraisers, includes the forty acres of which the land in controversy is part, by the government description, with the words “not heretofore sold,” and “the unsold part of.” (It is proper to say here that while both brothers were living two small parcels were sold and conveyed to defendant). The land was ordered to be sold, and was sold to the defendant.

The deed made by Thomas Donaho, as administrator, included the land in controversy, and was duly approved by the county court. The defendant knew at the time he purchased the lands and received the administrator’s deed that Thomas Donaho claimed some interest personally in the land in controversy in this action. The land is used principally as a wood and timber lot, and it was so used by Thomas Donaho and his representatives, and by the defendant, from the date of the administrator’s sale until about January 1,1874; but the evidence does not show that either party had knowledge- that the other party was so using said land to any extent. Thomas Donaho died in November, 1868, and about January, 1874, the defendant ordered one of the plaintiffs off of said land, and since that time the defendant has been in exclusive possession.

To entitle the plaintiffs to a decree as prayed they must establish two propositions: First, that Allen S. Donaho held the legal title to the land in trust for his brother, Thomas Donaho; and, second, that when Thomas Donaho filed his petition for the sale of the land belonging to his brother’s estate, and made the conveyance to the defendant, he included the land in controversy by mistake.

Conceding that the referee was justified from the proven facts in finding that the land was held in trust, but which point we do not determine, there is an entire absence of any evidence justifying the conclusion that there was a mistake in the proceedings in the county court, and in the deed.

True it is found that the defendant had notice that Thomas Donaho “claimed some: interest personally” in the land, but this is not sufficient. In the absence of any showing to the contrary we must presume that he intended to do just what he did. If he intended to convey his own land, and did' convey it to the defendant, and both parties so understood it, he and his representatives are forever estopped from setting ■ up title against the defendant.

The principles upon which this rule rests are so plain and fundamental as to need neither discussion nor the citation of authority for their support.

The cause was tried as a law action in the court below, and upon errors assigned in this court. The decree will be reversed, and cause remanded for a new trial.

Reversed.