82 Iowa 722 | Iowa | 1891
The petition asked the partition of six hundred and eighty-three acres of land in Louisa county, and represents that the plaintiffs, James C. and Mary E. Gallagher, ' are the owners of the undivided one-fourth thereof; that certain other defendants are the owners of an undivided' one-fourth, and that Samuel Bell, in his lifetime, was the owner of an undivided one-half thereof. Samuel Bell was living at the commencement of this suit, but has since decearn'l, and his widow and other devisees are made parties in_his
I. The plaintiffs offered and were allowed to put in evidence the ■copy of the patent issued by the general government as ifoppeared in the recorder’s office, to show the claim of title as indicated by the abstract of title attached to their petition. The objection was that it was incompetent, being secondary ’evidence, and that no proper foundation had been laid. It will be seen that appellants claim title through or from one Gideon Bayne, and asks that their title, based thereon, be confirmed by decree. They are, then, estopped to deny the title of Gideon Bayne. As we understand, the appellees also claim title through the same source, Gideon Bayne being an intermediate grantor. The condition of the Record is an acknowledgment of the title being in Gideon Bayne, and there was no necessity to show the title prior thereto, which was the effect of the evidence complained of.
Its admission was, as claimed by appellee, if, error at all, without prejudice.
II. The plaintiffs are the children of Catherine Gallagher, deceased, .and their title to the land in question is by devise from her. A point made against the decree entered below is that it does not appear from the record that the estate has been settled. A sufficient answer is that it does not appear from the record that it has not been settled. The record in no.manner refers to, or deals' with, the question. It was no.t „an issue on the trial in the district court, and is not here.
The judgment below is affiemed.