In the spring of 1847 the Federal Government sold at public outcry the mineral lands lying around the city of Dubuque. These lands were previously possessed by a large number of occupants, whose claims were of different and irregular sizes, not corresponding with the lines of the government surveys. These occupants formed a claim association, under a constitution and a written agreement, which they respectively signed, including the parties to this suit. The obj ect of this association and agreement was to settle by arbitration prior to the public sales, the rights to disputed claims, and to protect each real and bona fide owner in the purchase of his claim, as thus ascertained, settled and designated, on a plat of the lands made for that purpose. To carry out more certainly and con- ■ veniently this purpose, public bidders were appointed to attend the government sales, and bid off the lands, and reconvey to the several owners their appropriate quantity, or according to their respective interests.
At this time the plaintiffs were non-resident minors, living in Cincinnati, Ohio. Their father, Bernard McLenan, who had made or purchased the claim, had died sometime before the land sales. Just prior to the sale, however, their elder brother, John McLenan, had gone to Dubuque, from Ohio, and attended to the establishment of the claim before the requisite arbitrating committee, and paid all necessary charges and expenses therefor.
During the same visit, at the urgent request of Sullivan, he, the said John, loaned him some $440, on terms much less than the value of money at that time, but under a special contract that in consideration of this favor, he, the said Sullivan, would look after and protect the claim that had been awarded to the heirs of Bernard McLenan, deceased, and that he would advance for said heirs at the sales whatever sum of money should be necessary to pay the government for their land, the amount to be subsequently credited, however, upon the loan.
This was the condition of things at the date of the sales of these mineral lands, when George L. Nightingale bid off so much of lot 173 as laid outside of the W. I of S. E. i of Section 23, and took the certificate of purchase in his own name, in trust and for the use of the real claimants.
Following this decision, William McLenan and his sister, Margaret Laboyteaux, with her husband Isaac N. Laboyteaux, having purchased out the interest of John McLenan, did, in May, 1859, institute the suit at bar, to recover the legal title, (that it might be united with the equitable, which they claimed to have,) of the undivided half of that part of mineral lot 178, which lies outside of the W. of the S. E. J of section 23, and which Michael J. Sullivan, the husband and father of the main defendants in this case, wrongfully possessed himself of, in the suit first above referred to, of himself against Nightingale and the McLenans. The right to do so, and to obtain relief, was virtually decided in the latter of the cases above alluded to, wherein the said Michael J. Sullivan was the plaintiff, and Shields and others the defendants. Sullivan v. McLenan, 2 Iowa, 437.
The same questions, both of law and fact, that arise in this case, were fully discussed and determined in that case against the then plaintiff, Sullivan.
There are, however, one or two collateral questions insisted upon, as being against the plaintiff .’s right to the relief prayed for in their petition. One of these is, that the plaintiff’s right to recover is barred by the statute of limitations, the suit not having been brought, within ten years next after the cause of action arose, as required by the fourth clause of § 1659 of the Code. The third clause, however, of the same section, in connection with § 1660 of the Code, permits relief on the ground of fraud to be granted, within five years after the discovery thereof.
The evidence shows that on the 18th or 20th of May, 1854, the plaintiffs in this suit obtained their first information that Sullivan had procured, under the color of a decree of the court, the legal title from Nightingale of the land in question, and this was within five years of the commencement of this suit. Now let us see what was the good faith of this transaction. Before the land sales by the Government, the respective claim rights of these parties were fully investigated by the tribunal which they themselves had assisted in creating, and the property in question was ascertained and decided to be, by said tribunal, one-half in the plaintiffs, and only one-fourth in the defendant, Sullivan. After this was done, Sullivan recognized the Mc-Lenans’ right, and entered into a special contract with them that he would, in consideration of a certain favor granted to him, guard and protect their interest in said property.
The question as to the admissibility ofWm. McLenan’s deposition is an unimportant one, as the case is, in our opinion, with the plaintiffs, without his testimony. Nor did the court err in dismissing the bill as to the administrator, or as to Levans, one of the tenants in common. We shall, therefore, affirm the judgment below.
Affirmed.