Citizens' Savings Bank v. Stewart, 90 Iowa 467

Citizens' Savings Bank v. Stewart

90 Iowa 467 | Iowa | 1894

Granger, C. J.

It will be well to first settle disputed questions as to the equity suit of Wilkinson against Walker and wife. That suit was pending when the partition suit of Stewart against Walker and wife .and Elwell was commenced. Neither the plaintiff bank nor Wilkinson was a party to the partition suit. Ap-pellee’s claim is that the land in question was not so involved in the equity suit of Wilkinson against Walker .and wife that he was required to take notice of it in the partition' proceeding, wherein he purchased the interest ■of Mary C. Walker, and thus became the owner of the •entire twenty acres. Some question is made of the *470land being described in tbe decree in the Wilkinson case, bnt we think the fact that it is so described is not open to serious dispute. It is true that the description is not written >out in full by making each word complete, but it appears there by the use of initial letters and figures as follows: “N2 SE4 SE4 36,” etc. This description, in view of the entire record, leaves no doubt whatever of the identity of the land intended to-be embraced in the decree. A question of more serious contention is this: That the land in question was not described in the petition in the equity case, and, as the-partition suit was commenced and concluded before the decree was entered in the Wilkinson equity case, the proceedings did not impart constructive notice under the provisions of Code, section 2628, by which parties are required to take notice of suits pending wherein “a petition has been filed affecting real estate.” The petition in the equity suit is lost, and appellee seeks, by oral evidence, to overcome the presumptions arising-from the decree as to its contents.

It will be understood that the law action of Wilkinson against Walker, in which this land was levied upon by the attachment, and the equity suit to set aside the conveyance, were commenced at the same time, and the-latter was in aid of, and made special reference to, the former. The decree in the equity suit refers in terms to the judgment in the law action, and to the deeds of conveyance, which embrace the land in question, and the-decree speaks of the conveyances mentioned and set out in the petition herein. We are not to lose sight of the-fact that this is not an attempt to attack the decree in the equity case in this collatteral proceeding, but merely an attempt to defeat, or show facts to avoid, the operations of that suit as one pending with reference to the land, so as to impart notice before a decree is entered. In this respect the question may form an exception to the general rule as to attacking judgment in collateral *471proceedings. It may be said to be an inquiry into the condition of the record of a case during its pendency with a view to determine what notice it would legally mpart. The question in this form has not been discussed, and we will not determine it, but look to the effect of the evidence relied upon to overcome the recitals in the decree as to the record on which it is based. The main reliance of appellee is the testimony of three’ witnesses, Hart, Dailey and Brewer, who were attorneys in the Wilkinson case. The testimony is very weak, and inconclusive. Mr. Brewer says: “I am not positive whether the twenty-acre tract referred to was described in the petition in equity or the amendment in the Wilkinson suit against Thos. A. and Mary C. Walker, but, from the facts and circumstances which I am now able to recall, it is my conviction that it could not have been so embraced or described.” The foregoing fairly indicates the tenor and character of his testimony. He has no recollection whatever on the subject, but from “certain facts and circumstances” he deduces a conclusion as to the contents of the petition. To the question, “What is your best impression or recollection as to whether it was involved in said suit in equity?” he answered, “As already stated, it is my impression that the tract in question was not involved in the Wilkinson equity suit.” He then states some facts in regard to the other suits, from which he derives the “impression.” Mr. Dailey says: “My recollection and judgment is that it was not included in either the bill or the amendment.” His testimony then shows that he has no independent recollection on the subject. Mr. Hart says: “I am positive that the twenty-acre tract lying south of the park was not involved in the equity suit referred to in the interrogatory.” He then says: “lam sure neither Mrs. Walker nor myself understood that this land was involved in that suit, for the reason that Mr. and Mrs. - Walker were warm and *472intimate friends, and neither would seek to obtain an advantage over the other. The partition suit was necessary, in order to pass the title to Mrs. Walker free from any cloud which then or thereafter might be asserted by the creditors of Mr. Walker.” .His further testimony shows that he is without any recollection upon the subject, but that because of certain facts of which he has a recollection he concludes that the petition did not contain a description of the land. Such evidence is practically valueless, if not absolutely incompetent, to overcome the legitimate presumptions arising from the recitals in a decree. Again, it may be said that the impressions of the witnesses are against the probabilities of the case as indicated by the facts that the equity suit was instituted to subject the lands attached in the law action of Wilkinson against Walker, and that the land in question was a part of that attached. Our conclusion is that the land in question was described in the petition in the equity' case, and that it imparted notice to Stewart during his prosecution of the partition suit.

As the decree in the equity suit entirely divested Mrs. Walker of title to the land as against Wilkinson, whose interest the plaintiff now holds, and as neither the partition suit nor the sale thereunder could in any way operate to impair the rights of the plaintiff under the decree in the equity suit, the plaintiff is, by virtue of its deed under the sale in the attachment proceeding, the owner of the legal title, and entitled to have the same quieted, unless ■ the claim as to laches or an equitable estoppel shall prevail. This claim is without merit. Stewart and the plaintiff' have been tenants in common of this land since plaintiff acquired its title in 1882. Each has paid taxes on the land for a part of the time. The land, most of the time, has been open to the public. Stewart, as a joint tenant, has exercised control over the land in the absence of his cotenant, *473but Ms claim bas not been adverse 'in any sense that would set in operation the statute of limitations. He has incurred some expense in the way of improvements, but he has been more than compensated by what he has taken from the land. To us there seem to be no equities in the case favorable to Stewart. His entire claim rests on a fraudulent, conveyance of Walker to his wife, which was adjudged to be void, and the course of procedure by which he has sought to establish his title to the undivided one half of the land in dispute impresses us with a belief that he has intended to secure a title at the expense of injustice to bona fide creditors or their assignees. ■ There should be a decree quieting the title to the land in plaintiff, as prayed, and the cause will be remanded to the district court for that purpose. Reversed.