Rogers v. Turpin ( 1898 )

Ladd, J.

1 — Both parties claim title to the land in controversy, correctly described as the “E. of the S. W. -J of Sec. 6 in Tp. 68 north, of range 28 west of 5th P. M.,” under Thomas Newall, who entered it March 1, 1856. He conveyed to A. Harbaeh, May 13, 1857, and the latter to A. and D. H. Chambers, June 24th of the same year; but these deeds described the land as the “E. -|- of the S. E. -f- of Sec. 6.” Upon the death of D. IT. Chambers, Eliza J. McGregor conveyed all her interest in his estate to A. Chambers, and these were his only heirs. A Chambers died testate in 1873, willing the land to three trustees, to be held in trust for plaintiff. This will has been admitted to probate in Ringgold county. These trustees conveyed to themselves as trustees of plaintiff, and afterwards, in 1892, John M. Kennedy, the only survivor, executed a deed to her. Some question is made about the validity of these conveyances by the trustees. As in any event the plaintiff was the cestui que trust, we will not inquire concerning the devolution of the title by the trustees from themselves to themselves, or whether authorized by the will, which is not included in the record. All these instruments also describe the land as the “E. of the S. E. i” of the section. The Chambers, the trustees, and the plaintiff have paid the taxes on the east one-half of the southwest one-fourth since 1859, and neither Thomas Newall nor his heirs have claimed any interest therein. Thomas Newall died in 1861, leaving a widow and four children, three of whom are living. The depositions of Mrs. Newall and Mrs. Harback, whose husband, A. Harback, died in 1864, were taken. Both recall that their husbands had land in Ringgold county; and Mrs. Newall, that a deed was given to Harback. But neither one is able to recollect the description, or the circumstances attending the execution of the deeds thirty-seven years previous. Indeed, there is no^ evidence that any mistake was made in the description. The payment of taxes for many years tends to show that the land was claimed by those making such payments, and the absence of any claim of ownership by the widow and heirs of Newall tended to show that he or they had parted with the title. The case is not like Matthews v. Culbertson, 83 Iowa, 434, or Bacon v. Chase, 83 Iowa, 521. In the former, the tax deeds under which defendants claimed were regular on their face, and they obtained conveyances and made improvements in good faith, and were induced by Mathews to believe he was making no claim to the land. In the latter the defendants claimed under an administrator’s deed, and, owing to the laches of the plaintiffs, they were not permitted to question the title of defendants wlm were in possession. Here no title is shown in the plaintiff, and no mistake proven in any of the deeds through which she claims title. The proofs referred to entitle plaintiff to no relief whatever.

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3 II. On the seventh day of January, 1893, however, she obtained a quitclaim deed of the land, in controversy from Mrs. Newall and her daughter, Margaret Dawson, and husband, which was placed on record December 26, 1894. At that time the plaintiff was in possession of the land. It was unoccupied until 1891, when a fence was constructed by Ham on one side. During the following year it was- entirely enclosed by Borum, who used it as a ¡sheep pasture. Laird leased it from March 1,1893, one year, and during that time used it as a pasture and feed lot for cattle. Johnson took possession March 1,1894, fenced the land again, and continued to occupy it, keeping thirty-five or forty cattle and horses thereon, up to the beginning of this action. All these parties leased the land of plaintiff, through her agents, and inclosed it under the terms of the leases, permitting removal of fences at their termination. It was uncultivated land, and devoted to the purposes for which it was suited. The acts of ownership over it were those necessary to enjoy its use in its present condition, and acquire the profits it might yield. Colvin v. McCune, 39 Iowa, 502; Dice v. Brown, 98 Iowa, 297. Such possession was sufficient to put defendants on inquiry, and charge them with notice of her title, if any, to the land. In 1894, Mrs. Newall and Margaret Dawson and husband: 'executed! a quitclaim deed to W. M. Ashbrook, under whom the defendants claim. But as ■they had no interest in the land at that time, and plaintiff was in possession under their former deed, no title passed. It follows that the plaintiff is entitled to a decree confirming fier title in an undivided one-half of the land in controversy.

4 III. The other heirs of Thomas Newall (Benjamin C. Newall and wife, Ester Neal and husband, and Oscar N. Bell, only heir of Jesse A. Bell, deceased) executed quitclaim deeds to W. M. Ashbrook in 1894. The “li” was included in the name of this grantee by mistake; and he, as “Asbrook,” conveyed the land to O. S. Turpin. .The latter, after executing a mortgage to Mrs. Joe Keller, conveyed to his mother, Martha Ham. She thereby acquired the legal title to an undivided one-half interest in the eighty acres, and is entitled to a decree quieting her title thereto. The decree of the district court will be modified accordingly. As the plaintiff was entitled to possession as a tenant in common, the writ of injunction was properly issued, enjoining any interference therewith by the defendants, and the decree in the second case should be affirmed. — Modified and affirmed.