82 Iowa 601 | Iowa | 1891
In the early part of the year 1864, Allen Carnes owned the east half of the southeast quarter, and the northwest quarter of the northeast quarter of section 24, township 73, north, of range 34, west, in Adams county. He had a wife, named Rebecca, and four children. Of these, Mary had attained her majority, and was married to a man named Young. Elizabeth was about seventeen years of age, Rachel was twelve, and George W. was five. During or about the month of February, 1864, Carnes killed a man named Prather, and was himself soon afterwards hanged by a mob in Adair county. In March, 1864, after the killing of Prather, Carnes conveyed the land to one Parish, it is alleged, as trustee, and after his death in April, 1864, Parish conveyed it to the widow and the three minor children. Soon after the death of Allen Carnes his family, with David Carnes, the father of Allen, and others, left Adams county for Oregon by the overland route. At Council Bluffes the mother caused a letter to be written to John Barnett, which resulted in his being appointed guardian of the three minor children. After qualifying as guardian, he took charge of the land, leased it, and. collected rents. The family journeyed westward from Council Bluffs. Soon after leaving Omaha, Elizabeth was married to a man named Burch. In August, 1864,
There was no communication of any kind between Elizabeth and Rachel and George after they separated in Oregon, until alter this action was commenced, in the year 1888. The sister, Mrs. Young, in December, 1865, conveyed her interest as heir in the land in controversy, and moved to Kansas, where she died. In January, 1877, Rebecca J. Moore, a grantee of the interest conveyed by Mrs. Young, obtained a decree in the circuit court of Adams county fixing the interest thus conveyed as an undivided one-fourth of the land in controversy. Barnett, as guardian of Elizabeth, Rachel and George, rented all the land from the year 1864 until the decree mentioned was rendered, and after that time until the year 1883 he rented three-fourths of it. He made reports, as guardian, from time to time, until December, 1886, when his final report was made. It appears that he had paid Mrs. Davis, at different times, sums of money realized by him as guardian, but that he knew nothing of Rachel and George, and supposed them to be dead. In July, 1883, Mrs. Davis visited Adams county, and, acting upon the belief that Rachel and George were dead, and that she was their sole heir,
In August, 1884, the interest acquired by Eebecca J. Moore, and afterwards by E. A. Moore, was conveyed to Mrs. Davis. At about the same time Mrs. Davis executed a mortgage on the land to secure a loan for six hundred dollars which is due and unpaid. In February, 1886, Mrs. Davis executed a conveyance for all the land to one Daley, and he made a similar conveyance to W. O. Mitchell, the defendant. Mitchell then commenced an action against “ G. W. Carnes, Eachel Carnes and the unknown heirs of George W. and Eachel Carnes,” to quiet his title to the land. The original notice was not served pérsonally, but was published. There was no
I. The body of the affidavit filed in the case of
“I, W. O. Mitchell, on oath, say, I am the plaintiff in the above-entitled action ; that none of said defendants above named are residents of the state of Iowa.”
The appellants contend that this affidavit was insufficient ; that the court had no jurisdiction to enter default and judgment against them; and that the judgment rendered was, therefore, void. Section 2618 of the Code provides that “service maybe made by publication, when an affidavit is filed that personal service cannot be made on the defendant within this state, in either of the following cases: * * * Sixth. In actions which relate to, or the subject of which is, real or personal
II. The appellee insists that the appellants, by their conduct, have forfeited all right to the land, and
shown much diligence in protecting their interests. They knew when they attained their majority that their father had left land in Iowa, and that they were probably interested in it. They also knew that they had relatives who were living near the land. Notwithstanding these facts, they made no effort to find those relatives, nor to ascertain the condition of the title to their land, until the year 1888. But they were children when they were taken from Iowa, and could not, in the nature of things, have formed enduring attachments for their relatives, nor have comprehended their interests in the land.
III. The claim of the appellants to be the children of Alleu and Bebecca Carnes is denied in the pleadings, but we do not understand that it is now questioned. The evidence shows quite satisfactorily that they are what they claim to be. The conclusions we have announced make it unnecessary to determine several questions discussed by counsel.
IY. Claim is made that the mortgage of six hundred dollars now on the land was necessary to procure