205 N.W. 228 | Iowa | 1925
The facts out of which the issues arise may be briefly stated. It is undisputed that John George Montagne, plaintiffs' ancestor, was the rightful owner of the land in controversy on June 29, 1900. On that date he was adjudged insane by the 1. INSANE commissioners of insanity of Cherokee County, PERSONS: and committed to the hospital for the insane at judgment: Clarinda. He was discharged as cured October 3d when following, and a certificate issued by the voidable superintendent of said institution, attesting only. his belief that Montagne was restored in mind. This certificate was filed in Cherokee, August 5, 1901. On August 8, 1901, Cherokee County, by J.W. Dailey, its county auditor, brought an action against John George Montagne, to recover the sum of $132.05, with interest thereon, as expenses incurred by the county resulting from Montagne's insanity. He was served personally as though sui juris, and no guardian ad litem was appointed. Upon his failure to appear, judgment by default was rendered against him. Thereafter, execution was levied on the east half of the land now in controversy, and it was sold to the county by the sheriff for the sum of the judgment, interest, and costs. The right of redemption was not claimed, and on March 12, 1904, a sheriff's deed was executed to the county.
By warranty deed, executed and recorded December 17, 1902, John George Montagne and wife conveyed the 80 acres *536 in question to their son, Henry Montagne. November 1, 1904, Cherokee County recovered a judgment against Henry Montagne in the sum of $120, interest and costs of $6, in an action brought for rent due for use of the east 40 acres. This was also a default judgment, Henry having been served personally, and having failed to appear. Execution was levied on the west 40 acres of the land conveyed to Henry by his father, and it was sold, January 30, 1905, to J.A. Miller and O.E. Hess for $148.52, the amount of the judgment, interest, and costs. There was no redemption, and sheriff's deed was executed to the vendees, January 31, 1906.
February 1, 1906, Cherokee County quitclaimed the east 40 acres of said land to J.A. Miller, and on the same day, he quitclaimed a one-half undivided interest therein to O.E. Hess. June 6, 1906, J.A. Miller conveyed by quitclaim deed his undivided one-half interest in the land now in controversy to O.E. Hess, and June 8, 1906, O.E. Hess quitclaimed said land to E.E. Rowe, who claims to be a bona-fide purchaser for value, and without notice of any of the facts urged by plaintiffs to set aside his conveyance.
March 14, 1906, O.E. Hess and J.A. Miller brought an action in equity against John George Montagne and Henry Montagne, for the purpose of quieting their title to said land. Notice was served on both the defendants in that action personally, but, upon their failure to appear, a default decree was entered against said defendants, quieting title in plaintiffs. Thereafter, action in equity was brought by O.E. Hess and J.A. Miller against John George Montagne, Henry Montagne, John Montagne, and George Montagne for an injunction to prevent defendants from trespassing upon said land or interfering with plaintiffs' possession. Temporary injunction was issued and served on defendants. Personal service was made on the defendants in the original cause August 21, 1906. Defendants having defaulted, permanent injunction was ordered against them September 25, 1906. E.E. Rowe was substituted as plaintiff, and two of the defendants, Henry and George Montagne, were arrested and brought before the court on bench warrants, charged with contempt in violating the injunction. They were adjudged in contempt, and on promise that they would refrain from any *537 further interference with the land, they were released, upon payment of costs, April 4, 1907.
John George Montagne died June 12, 1907, and a paper purporting to be his will, executed June 2, 1907, was admitted to probate September 3, 1907. In an action to set aside the probate, brought by Lena Montagne Mileham, daughter of the deceased, the jury found, November 13, 1908, that the deceased was of unsound mind, and did not have testamentary capacity at the time of the execution and publication of said instrument. Judgment entered setting aside the alleged will was affirmed by the Supreme Court in Mileham v. Montagne,
It is earnestly contended by appellants that the judgments, decrees, and conveyances affecting title to the land in controversy should be set aside, a decree entered finding their ancestor to have died seized of said land, and title to the same quieted in themselves. The grounds advanced for such decree are the alleged insanity of John George Montagne and the fraud chargeable to the county in securing judgment on a claim the greater part of which was invalid, against said Montagne, with a knowledge of his insanity on the part of the county officials, and especially on the part of the county attorney, who profited greatly by the various transactions. Considerable evidence was introduced to establish the insanity of Montagne, and it is contended that the record clearly shows that a fraud was perpetrated upon the court in securing the judgments complained of against him. But with the view we take of the case, it will not be necessary to determine either issue. It is argued that, since Montagne was not served with notice as provided by Section 3526 of the Code, 1897, and no guardian ad litem was appointed, according to Section 3485, judgment rendered against him was absolutely void. But the law is clearly otherwise. A judgment rendered against an insane person in a proceeding where jurisdiction is acquired by such service as would be valid but for defendant's insanity is, at most, voidable, and not void. The effect of insanity is to render the judgment subject to attack, provided that a prima-facie defense to the action is shown to have existed. The rule we here express is universally announced by the courts. Lamprey v. Nudd,
Fraud in procuring a judgment, where, as in this case, the fraud does not go to the jurisdiction of the court, has the same effect as insanity of the defendant. The judgment is rendered voidable, and not void. Mahoney v. State Ins. Co.,
It is further contended that all subsequent purchasers, including defendant E.E. Rowe, were chargeable with notice of the defect in the title, and therefore cannot assert the rights of bona-fide purchasers. Were this contention 2. JUDGMENT: granted, — which, doubtless, is vacation: unavoidable, under the facts of the instant fatal case, — we are unable to see how delay. appellants' position is thereby strengthened. It will be admitted that none of the transactions subsequent to the judgment from which they derive their validity, and in which they acquired their inception, can be attacked without first vacating such judgment. If the judgments, therefore, involving the title to the property in question, cannot be disturbed, all the transactions following such judgments are now unimpeachable. In examining the status of the property in controversy with respect to the principles we have expressed, it will be convenient to consider separately the two 40-acre tracts which compose the land claimed by appellants. For the sake of brevity, these two portions will be designated as the east 40 and the west 40.
(1) The east 40 was taken on execution, to satisfy a judgment against John George Montagne. Is this judgment now subject to attack? The considerations urged by appellants, that fraud was practiced by the county officials, and that defendant *539 was insane at the time, would merely render the judgment voidable. We have already cited the judicial authorities bearing upon these allegations. Furthermore, the Code of 1897 expressly specifies the grounds upon which a judgment may be vacated. The portions affecting the present controversy read as follows:
"Sec. 4091. Where a final judgment or order has been rendered or made, the district court, in addition to causes for a new trial hereinbefore authorized, may, after the term at which the same was rendered or made, vacate or modify the same or grant a new trial: * * *
"2. For fraud practiced in obtaining the same;
"3. For erroneous proceedings against a minor or person of unsound mind, when such errors or condition of mind do not appear in the record; * * *
"Sec. 4094. The application based upon the other grounds [which include 2 and 3 above] shall be by verified petition setting forth the judgment or order, the alleged facts or errors constituting a cause to vacate or modify it, and the matters constituting a defense to the action, if the party applying was a defendant. Such proceedings must be commenced within one year after the judgment or order was made, unless the party entitled thereto is a minor or person of unsound mind, and then within one year after the removal of such disability."
We have repeatedly held that the grounds upon which a judgment may be vacated either in law or equity must be found among those enumerated in the Code. Lumpkin v. Snook,
(2) The west 40 at first blush seems to involve a different principle. Both 40's were conveyed by John George Montagne and wife to their son, Henry, by warranty deed, December 17, 1902. It is contended that this deed was a nullity, and 4. INSANE that consequently the execution levied upon the PERSONS: west 40 was invalid, and no rights acquired deed: thereby. In brief, although a judgment was effect. rendered against Henry which may not now be attacked, yet the land levied upon in satisfaction of that judgment was still the property of John George Montagne. However, we have repeatedly held that the deed of an insane person is not void. The effect accorded it will depend upon the circumstances under which it was executed. Ashcraft v. De Armond,
The judgment and decree of the lower court must, therefore, be — Affirmed.
VERMILION and ALBERT, JJ., concur.
STEVENS, J., concurs in the result.
FAVILLE, C.J., takes no part.