Blanchard v. Ware, 43 Iowa 530

Blanchard v. Ware

43 Iowa 530 | Iowa | 1876

Rothrock, J.

At common law án occupying claimant could not recover in a separate action against one who held the superior title, whatever the good faith with which his improvements were made, nor whatever his color of title.

The plaintiffs in this case claim that they are entitled to recover in equity for the alleged fraudulent acts of the defendant, and by reason of the want of actual notice of the pendency of the suit of defendant against Freeman.

They purchased the land pendente lite, and are bound by the judgment and the service of the writ of possession, the same as Freeman would have been if he had not sold and conveyed the land. Blanchard v. Ware, 37 Iowa, 305. The facts relied on as constituting a fraudulent concealment of the pendency of the suit, we do not deem sufficient to entitle the plaintiff to the *532relief demanded. It is not alleged that Ware knew, before the judgment was rendered in his favor, that Freeman had conveyed to plaintiffs, and there is no allegation that Ware concealed the pleadings in the case. It is averred that a careful search failed to disclose any record of the pendency of the suit, but this absence of records is not charged as a fraud upon Ware’s part. Further, the petition states that Jfreeman appeared to said action before he sold the land to plaintiffs, and was granted sixty days to answer. ITow this extension of time to answer was obtained without some record being made we are unable to conceive. However this may be, as no fraudulent act is charged against Ware, we must hold that he cannot be prejudiced by the failure of plaintiffs to discover any record of said suit. Holding then, as we do, that plaintiffs purchased pending the suit, and that they had constructive notice thereof, and are bound by the judgment, we must also hold that they were bound at their peril to take notice of the service of the writ of possession, and make their claim for improvements at the proper time under the provisions of the occupying claimant law.

Affirmed.

Seevers, Cii. J., having been of counsel in this cause, took no part in its determination.