No. 47130. | Iowa | Nov 11, 1947
Action for specific performance of a real estate contract between plaintiff-vendor and defendant-vendee. Defendant refused performance contending the title, as submitted, is not merchantable. The trial court held otherwise, ordered specific performance, and defendant appeals.
While the case is triable de novo, it being in equity, the facts are not in dispute. The questions raised on this appeal are strictly legal. The real estate involved is described as "Lot 94 in Capitol Heights, No. 2, an Official Plat in Polk County, *1077 Iowa." On September 1, 1941, title to said property appears in the name of T.J. Nolan. On that date Nolan contracted to convey the same to Arthur A. Bristow. Warranty deed was executed by Nolan to Bristow December 20, 1946, and recorded January 15, 1947. The contract of sale between Bristow and Pagano, entered into in November 1946, was the usual form of real estate contract and called for merchantable title in seller.
The abstract of title shows that in August 1946 Arthur A. Bristow brought suit for divorce from his wife, Beulah M. Bristow. Service was by publication. In the petition Bristow alleges that he is a resident of Polk County, Iowa; that he owns the property here involved, and asks that he be granted a divorce and title to the property quieted in him.
Default decree was entered October 12, 1946. On October 18, 1946, the attorney for Bristow filed an affidavit of nonmilitary service of Beulah Mary Bristow, alleging in part that she is not entitled to the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940,
Appellant alleges the title is not merchantable for three reasons, all based upon the divorce action. They are: (1) No jurisdiction over defendant (2) decree invalid as two causes of action were joined, contrary to law, and (3) failure to file an affidavit of nonmilitary service prior to the decree clouds the title.
[1] I. As to the trial court's jurisdiction: The petition alleges plaintiff is a resident of Polk county, but does not state what township thereof. This constitutes the alleged error. Chapter 598, Code, 1946, on Divorce, section
"The district court in the county where either party resides has jurisdiction of the subject matter of this chapter."
Section
[2] II. Was there a misjoinder of causes of action? Section
"An action for a divorce shall be by equitable proceedings, and no cause of action, save for alimony, shall be joined therewith."
In the divorce petition, plaintiff stated he owned the property and asked that title be quieted in him. In substance he asks that, on a divorce being granted, defendant's inchoate dower interest be cut off. The granting of the divorce alone would accomplish this purpose without any prayer therefor. We consider this prayer "that title * * * be quieted in his name" is in a sense surplusage and certainly not a "misjoinder of another cause of action" within the intent of section
"When a divorce is decreed, the court may make such order in relation to the * * * property * * * of the parties as shall be right."
[3] III. What is the effect of not filing a nonmilitary affidavit until after the decree was entered? Under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App., section 520, in the event of a default of appearance by a defendant, the plaintiff before entering judgment is required to file an affidavit showing whether or not such defendant is in the military service. Irrespective of the affidavit, if a judgment is entered against one in military service and it appears he has been prejudiced by reason of such service from making a defense, such person may within ninety days after termination of the military service, upon showing a meritorious or legal defense, *1079 have the cause reopened. However, vacating, setting aside or reversing any judgment because of any provisions of the section does not impair any right or title acquired by any bona fide purchaser for value under such judgment.
It has been consistently held that this affidavit is not jurisdictional. That a default judgment is not void but merely voidable at the behest of the serviceman. Hynds v. City of Ada ex rel. Mitchell,
[4] The mere possibility of a defect, which, according to ordinary experience, has no probable basis, does not show an unmarketable title; the mere possibility or suspicion of a defect is not sufficient if the title is such that it ought to satisfy a man of ordinary prudence. 55 Am. Jur., Vendor and Purchaser, section 167; Buchan v. German American Land Co.,
Finding no error, the decree of the trial court should be and is affirmed. — Affirmed.
OLIVER, C.J., and BLISS, HALE, GARFIELD, SMITH, MANTZ, and MULRONEY, JJ., concur. *1080