144 Iowa 486 | Iowa | 1909
Although in form this is an action for partition, in its real effect, it is an action to try the title of the plaintiffs to an undivided interest in certain land in Clinton County. The common source of title under which both parties claim was Bernard Ahrens, who died intestate December 18, 1860, seised of the undivided half of a quarter section of land; his brother, J. D. Ahrens, being seised of the other undivided half thereof. . Bernard left neither widow nor children. His mother, Trinke Ahrens, was his only surviving parent. He left surviving him two brothers and two sisters, the only other children of his mother. The mother was resident of the United States, and died March 19, 1862. One brother and sister were residents of the United States at the time of the death of Bernard, and ever after. The other brother and sister were nonresident aliens, residents of Oldenburg, Germany, and continued to be nonresident aliens until 1869, when they removed to the United States. The resident brother was J. D. Ahrens, now deceased, the owner of the other undivided half of the quarter section at the time of Bernard’s death, and the father of the defendants in this suit. His resident sister was Wilhelmina Schmidt, who conveyed to her brother, J. D. Ahrens, all her interest in Bernard’s estate. The nonresident brother was A. H. Ahrens, plain
During the period covered by our inquiry, there were many treaties in force between our government and European sovereignties which contained a provision similar to the one under consideration. In the majority of them, the limit of time was fixed at two years. In some of them it was fixed at three years. Our attention has been directed to no treaty which fixed a higher limit of time than the latter. In the Doehrel case, supra, this court held that five years was abundant time to answer the call of a treaty for a “reasonable time.” In this case reference was had to our later statute enacted in 1885 fixing five years as a time limit within which certain conditions of inheritance should be complied with. We have no occasion now to fix any hard and fast rule whereby it may be said that a “reasonable time” is neither more nor less than five years. It may be assumed for the purpose of the argument that what is a “reasonable time” in a given case is a mixed question of law and fact, depending upon the circumstances alleged or proved. We think, however, that it should he held as a matter of law that, in the absence of excusing facts or circumstances, more than a reasonable time elapsed in this case after the death of the mother and before the legislation of 1868, and that the expiration of such time worked a failure of the condition imposed in the treaty. It necessarily follows that the full title must be deemed to have vested in fee simple in the resident heirs at the ■ same time. Whether a different rule should prevail upon a showing of excusing circumstances is a question upon which we will not speculate. So far as appears in this ease, the nonresident aliens have never attempted to avail themselves of the provision of the treaty until now. It was not a question with them whether two years, five years or ten years should be deemed a “reasonable time.” They waited fifty years. They have slumbered
The conclusion reached at this point renders it unnecessary for us to consider the other points argued by counsel.
We agree with the trial court in the conclusion reached, and its judgment is affirmed.