164 Iowa 344 | Iowa | 1914
The plaintiff, Collier, claiming to be the owner of a one-third interest in certain real estate, brought this action in partition. At the same time he brought one hundred and seventy-one other actions of like character against other defendants for the partition of as many other lots or. tracts of land. The claim of title thus asserted was of the same general character in all the cases; the alleged title being based on esentially the same state of facts, and traced from the same common source, to-wit, a certain quitclaim deed from one George B. Smythe, the surviving husband of a deceased former owner. After these actions were begun, but twenty days before filing any answer or cross-bill, the defendants in each ease formally requested the plaintiff to execute to them a quitclaim deed to the lot or tract of land in question, and tendered to him $1.25 to cover the cost of executing and delivering such conveyance, and in each instance such request and tender were refused. Thereafter in each case the defendants answered, denying plaintiff’s claim of title, and -by way of counterclaim or cross-bill affirmatively alleged title in fee in themselves, which they asked to have quieted against plaintiff. In each case, also, they further pleaded the fact of their request or demand upon plaintiff for a quitclaim deed, and the tender to him of said sum of $1.25 to cover the necessary expense so occasioned, and his refusal thereof, on which showing they asked that an attorney’s fee be allowed them as provided in Code, section 4226. , .
It should be stated that many of these defendants derived the title to the lands in controversy through conveyances with warranty mediately or immediately from a corporation known as the Iowa Railroad Land Company, which company also still held other lands affected by like claims of title on the part of plaintiff, and that, to protect its own interests and those of its grantees, said corporation instituted an action in equity to quiet said title against the claims of Collier, and naturally made common cause with the defendants in the partition cases.
It is hereby stipulated and agreed as follows between the parties to the above-entitled suit and all other like suits brought by David A. Collier in said court for the partition of the town lots in the town of Kingsley, Plymouth county, Iowa, and of lands in Plymouth county, Iowa:
(1) That the defendants may bring on for trial at the December, 1908, term of said court one of said causes, and such one as they may file trial notices in within one month prior to the first day of the next term of the district court of said Plymouth county.
(2) That plaintiff may bring on for trial one of said causes for the same term of court upon filing a like trial notice in said cause.
(3) That the remainder of said causes shall stand continued with leave to both plaintiff and defendant to further plead after the trial of the cause or causes above mentioned, if either party shall so desire.
(4) That depositions and evidence may be taken on behalf of the plaintiff or defendant in the cause designated for trial, and, when so taken, may be read not only in the cause above, or the cause upon which said trial was had, but in all other similar causes pending in said court, with the' same force and effect as if taken in each of said causes.
(5) That any testimony or evidence given or taken on the trial of said cause or causes may be read on the trial of each and every other cause, if trials therein are had.
(6) Since the questions of law and fact are practically the same in all the above cases, it is the purpose of this stipulation to save counsel as much time and labor as possible in determining the questions involved.
Pursuant to this stipulation the parties designated for the test, of actual trial the case brought by the Railroad Land Company to quiet title and the case brought by Collier against one Smaltz for partition. These two actions, while retaining their independent character, were treated as one for the purposes of trial, and submitted upon the same evidence and arguments. The trial court found against the claims of Collier,
The appeals having been disposed of, Collier did not further prosecute the remaining 171 eases, and in each of them the defendants asked and were granted decrees upon their cross-bills establishing and quieting their title as prayed, with judgment against plaintiff for taxable costs, but refusing to tax attorney’s fees claimed by the defendants. From this last ruling, the denial of defendants’ demand for attorney’s fees, the appeal now before us has been taken.
I. Question is raised at the outset whether the court has jurisdiction to entertain the appeal, because it is said, appeals from a mere question of taxing costs will not be considered, and because the amount in controversy does not in any one case exceed $100. As we find the ease may be affirmed on its merits, we shall not take time to consider the objection thus raised. It is at least open to doubt whether a refusal to tax an attorney’s fee, where a party has a statutory right thereto, comes within the rule which makes the taxation of ordinary costs nonappealable. So, also, it is a fair question, which we need not now attempt to decide, whether the case is not within the statute which makes a judgment or decree in an action in
Section 4226: “If a party, twenty days or more before the bringing suit to quiet title to real estate, shall request of the person holding an apparent adverse interest or right therein the execution of a quitclaim deed thereto, and shall also tender to him one dollar and twenty-five cents to cover the expense of the execution and delivery of the deed, and if he shall refuse or neglect to comply therewith, the filing of a disclaimer of interest or right shall not avoid the costs in an action afterwards brought, and the court may, in its discretion, if the plaintiff succeeds, tax, in addition to the ordinary costs of court, an attorney’s fee for plaintiff’s attorney, not exceeding $25,” where a single tract of not more than forty acres is involved, and a proportionately greater maximum where the property is of greater extent.
The argument by which the claim is sought to be sustained is that the filing of the counterclaim or cross-bill asking to have title quieted in defendants was in effect the beginning of an independent action for affirmative relief, and the provision for attorney’s fees is applicable to precisely the same extent as if the defendant had begun an entirely distinct and separate suit. It is very evident from the reading of the statute that the Legislature did not intend to make an attorney’s fee taxable in every action to quiet title for, if such had been the purpose, we may assume it would have been expressed in clear terms. The circumstances giving rise to this provision are matters of common knowledge to members of the profession. In the earlier years of the history of this state
But we cannot agree with the appellant’s contention that, in claiming an attorney’s fee in this case, they stand upon precisely the same footing as if the partition ease had never been begun, and they had themselves brought an action against Collier to quiet title after due demand of deed and tender of money to pay the expense. The purpose of the statute, as we have already noted, is to avoid litigation, and enable the landowner to get rid of clouds upon his title by negotiation and agreement rather than by decree of court. But in the case before us the defendants were already in court. By plaintiff’s action, in which he asserted a one-third ownership in fee, and demanded partition, he presented for the court’s consideration the validity of his claim of title, and the defendants, having been brought into the court’s jurisdiction by proper notice, and desiring to contest his claim, could do so by mere denial, or by asserting affirmatively their own title, or both. That case, tried to final decree, would have settled their respective rights in the premises forever. Defendants could not thereafter have maintained another action against the same parties to adjudicate again their respective claims of ownership. They could, of course, in their answer, couple with such claim of ownership a prayer for affirmative relief by way of a decree quieting their title as they in fact did, and while, to this extent, the pleading was the equivalent of a petition in an independent action, in that it would support a grant of the same relief which
Other phases of the question have been argued by counsel; but those of which we have made mention appear to be controlling, and we shall not further pursue the discussion. We have thought it unnecessary to state or discuss the nature and origin of the title under which the plaintiff asserted his claim to a share in the lands in controversy. They are sufficiently set forth in the opinion handed down on the for
For the reasons already stated, we hold that the ruling appealed from is right, and it is therefore — Affirmed.