Cole v. Gill

14 Iowa 527 | Iowa | 1863

Wright, J.

Appellee seeks to sustain the judgment of the court below upon two grounds: First; That defendant is to be treated as á tenant at will of plaintiff, and, as such, had not sufficient or proper notice to quit: Second; That he had the legal title.

Counsel entirely mistakes the relation existing between these parties. Defendant was not the plaintiff’s tenant. The doctrine applicable to a tenancy at will, has, therefore, nothing to do with this case. It is very manifest that defendant entered into possession under the contract of sale, and, in a legal action, he was bound to surrender such possession to the holder of the legal title, without notice.

Who then, in the second place, had the legal title ? It is assumed that defendant had, because, before plaintiff could recover upon the notes, he was bound to execute and tender a deed; that this deed he did tender and bring into court, and thus the title passed. There are two obstacles to this theory. The first is that there was nothing whatever to show that there was a tender of the deed under the circumstances supposed, nor that the deed was ever in court. It is a question of construction, whether plaintiff was or was not bound to tender a deed before suing on the notes. He may or may not have been so. It is very certain that his failure to do so would not vitiate the judgment recovered upon the notes, nor impair his otherwise válid legal title. But, in the second place, it is shown that this deed was never delivered nor accepted. In a legal sense, therefore, it accomplished nothing. The title was not disturbed by its simple execution.

No right is urged in argument under the homestead claim. Nor could there well be, for in the first place the purchase money had not been paid. Christy v. Dyer, ante. And in the second place, it is not shown that the part claimed was at any time used and occupied by the family. To merely mark out, plat and record a tract of ground, as a homestead does not make it such. Occupancy and its use as a home by the family, are the essential requirements.

Defendant might have had his case transferred to the equity side of the court. This he did not do, however, but relied upon the sufficiency of his legal title, and under the agreed state of facts, we are constrained to hold that this is in plaintiff. Harmon v. Steinman, 9 Iowa, 112; Page v. Cole, 6 Id., 153; Farley, Norris & Co. v. Goocher, 11 Id., 570; Abbott v. Chase, 13 Id., 453.

Reversed.