194 Iowa 1026 | Iowa | 1922
The real controversy between the parties is, as we view the record, in regard to 1.55 acres of land. In all probability, there would have been no controversy, even • over the 1.55 acres, but for the collapse of the Iowa land boom. There is little, if any, dispute in the record. The case is peculiar in some respects. At the time of the execution of the contract,
“Wherefore this plaintiff renews his tender as hereinbefore set out, and asks the court to decree specific performance of said contract as against said defendants, and to render judgment against defendants for damages for their failure to perform at the proper time, and for such other and further relief as may be equitable in the premises.”
Such was the state of the pleadings at the time of the trial, and at the time the decree was entered below, and as they are now. By the contract, defendants agreed to sell, and plaintiff to buy, 128.05 acres. The petition further alleged that defendants were unable to perform their contract for land in excess of 126.50 acres, and that plaintiff tendered performance on his part as to that quantity of land, and demanded performance by defendants, so far as they were able to perform.
It seems to us that this is somewhat out of the ordinary in an action for specific performance, and that plaintiff in a sense abandoned specific and exact performance as to the full num-
It appears that, in 1838, an original entry of the quarter section was made by one Benedict; and in 1841, a patent was issued to him. Both the original entry and the patent describe the land as a fractional quarter section, containing 165.82 acres. Surveys made afterwards showed that, in fact, it contained 171.55 acres. Different conveyances were made, until the title became vested in parties named Hollister. That was prior to January 24, 1874. On the date last mentioned, the Hollisters partitioned the quarter section by mutual conveyances among themselves, whereby the title to the east 43.50 acres, which became a separate farm, was vested in one Hollister, and the title to the ’west part, supposed to contain 126.50 acres, was vested in another Hollister. This west part also became a separate farm. Later, the title to the east farm, of 43.50 acres, became vested in one Carlson, who owned it on March 1, 1920. The
About the time plaintiff entered into the contract with defendants to purchase the west part of the fractional quarter, he also entered into a similar contract with the owner of the east 43.50 acres to purchase the same from him, and both deals were to be closed on March 1, 1920. At that time, Carlson, the owner
It should have been before stated that plaintiff claims that defendants had title to only 122 and a fraction acres. They arrive at this, as we understand it, by deducting the 43.50 acres in the east portion from the 165.82 described in the patent from the government; but, as said, they concede in their pleadings 126.50 acres. All the parties, including Carlson, met at an office on March 1, 1920, each side claiming to be ready to close the deals. Carlson claimed only the 43.50 acres east of the division fence. At that time, parties holding mortgages on the premises were present, and were ready and willing to accept their pay and release the mortgages and to make the abstracts so show at the time of closing the deal with plaintiff. The only objection made by plaintiff at that time was that defendants could not convey or give merchantable title for the full amount. The parties split on that proposition. Thereafter, plaintiff brought his suit for specific performance, and defendant asked specific performance. It seems that the real question in the case was whether or not defendants were entitled to receive pay for the full 128.05 acres, or for the amount claimed by plaintiff. Defendants contended that there were 128.05 acres of their land; their deed showed that many acres; the survey and plat which was of record showed that many acres; Carlson, who ivas present, and agreed with them in the matter, claimed only 43.50 acres east of the division fence; and he was the only one who could claim any other part of the quarter section. The
“All persons owning real estate not held by an adverse possession shall be deemed to be seized and possessed of the same. ’ ’
Section 2914 provides that:
“Every conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.”
Section 2957 provides that:
“ * * * Affidavits explaining any defect in the chain of title to any real estate may be recorded as instruments affecting the same. ’ ’
Other sections of the statute provide for recording of such instruments, surveys, plats, and so on. See Code of 1897, Sections 534 and 2935.
Appellees contend that the affidavits merely explain defects in the title; while appellant contends that the question is not one of defect, but that defendants attempted to supply a link in the chain of title as to certain acreage, in the form of affidavits. Appellant’s contention is not quite accurate, perhaps The title to the entire fractional quarter, though by actual survey there was a larger number of acres than described in the patent, had passed from the government to the subsequent owners, as to all the land there was. Title could not be quieted in the government. Somebody got title to the land under the patent. Defendants and their grantors for about 50 years claimed the entire acreage shown to have been actually contained in the fractional quarter. Defendants and their grantors claimed the 128.05 acres to the west, and this under the original grant and under the survey and plat showing that number of acres in the west portion, which plat and the affidavits explaining the defects were of record, and were shown on the abstract. Appellees contend that claim of title based upon an agreement to a boundary line is different from a claim of title based upon adverse possession. On this point, they cite Miller v. Mills County, 111 Iowa 654; Keller v. Harrison, 151 Iowa 320; and
Other circumstances have a bearing, but we shall not stop to repeat them now. Other questions are argued, but the foregoing discussion is decisive of the case. I would affirm. Justice Weaver is of like mind; but a majority of the court are of opinion that defendants are entitled to specific performance as to only 126.50 acres, and that defendants may retain the remaining 1.55 acres of the 128.05 acres. The decree is so modified, and affirmed in all other respects. The clerk will tax the costs of appellees’ printing to them, and all bther costs to appellant. — Modified and affirmed.