Lewis v. Soule, 52 Iowa 11

Lewis v. Soule

52 Iowa 11 | Iowa | 1879

Adams, J.

1. conveyance: by bankrupt to assignee.

I. The petition shows that Jay Cooke, at the time of the execution of the deed by him, was a bankrupt. The defendants assume that the averment means that ke had been adjudicated a bankrupt, and they insist that he was by law prohibited from making any disposition of his property. He might, however, convey to *13ail assignee in bankruptcy, and the petition avers that plaintiff holds the land as the assignee of Cooke, for his creditors.

The defendants further insist that there is no evidence of the plaintiff’s appointment or qualification, and no evidence that the deed has been approved by any court of bankruptey. But the deed would have the effect to pass the legal title, and we think that the plaintiff is at least prima facie authorized to maintain the action.

2. tax sale: statute of limitations: unoccupied lands. II. Section 902 of the Code provides that “no action for the recovery of real property sold for the non-payment of taxes shall lie unless the same be brought within five years after the treasurer’s deed is executed and recorded.” This action was not brought within five years from the recording’ of the deed, and the defendants insist that it is barred.

The action is not in the form of an action for the recovery of real property, but even if it were it would not be barred. The land was unoccupied until after the lapse of the five years, and the case comes within the ruling in Moingona Coal Co. v. Blair, 51 Iowa, 447.

3. practice: action to quiet title. III. The evidence tends to show that at the time action was brought the defendants, and not the plaintiff, held possession, The defendants insist that the evidence is sufficient to establish such fact, and that this action, which is virtually an action to quiet title, cannot be maintained, but only an action, if any, to recover real property.

Where the defendant is in possession, the action to recover real property is more appropriate, because more effectual. The plaintiff, if successful, becomes entitled to a writ of jrossession. Still it appears to us that the action to quiet title may be maintained in all cases where the defendant makes some claim adverse to the estate of the plaintiff. The defendants in this case make such claim, for they claim to be the owners of the property.

Finally, it is insisted that this action cannot be maintained, because it is denominated an action in equity, while the plaintiff claims to have the legal title, and has in fact the legal title if he has any.

*144._: form of action. It is not fatal to the action because it is denominated an action in equity. If the plaintiff shows in his petition that his cause of action is at law, it was the defendants’ right to have the action tried as an action at law, and if they omitted to avail themselves of that right it is too late to complain now. In our opinion the judgment of the court below must be

Affirmed.

Chief Justice Beck, and Mr. Justice Rothrock, dissent upon the second point of the opinion, and adhere to their views as expressed in the dissenting opinion in Moingona Coal Co. v. Blair.