8 Iowa 322 | Iowa | 1859
The county judge of Pottawatamie county, entered the town site of Council Bluffs, and held
In relation to this town site, the county judge is a naked trustee, holding the property for the use and benefit of the occupants purely and exclusively. In case of contest between two persons claiming the same property, he has no judicial power; but it is his duty to withhold the title from either, until their respective rights may be settled and adjudicated by the courts of the country. 1 G. Greene, 376. As between the parties to this action, (taking the bill as true), it was his duty to have turned them over to the judicial tribunals, and to have made no conveyance, until their respective rights were there investigated and determined-Having made the deed, however, the grantee becomes the trustee for the rightful ownier or occupant, if it shall turn out that he (the grantee), has not such right. And the question now is, whether, in order to compel the execution of this trust, it was the duty of complainants to tender or offer to pay respondent the amount paid by him to the county judge. We think not.
The general and ordinary rule is, as claimed by respondent, that complainant must aver and prove a tender, of the purchase money, or the amount required of him, before demanding his deed. This rule, however, like most others, has its exceptions; and, in applying it, we must have ref
Judgment reversed.