53 Iowa 612 | Iowa | 1880
Ahraham Moore, the deceased, acquired the property in controversy without the assistance of his parents. He enlisted in the United States military service in 1861, and was killed in action at Einggold, Georgia, in November, 1863: It is apparent that at the death of Abraham Moore his father and mother inherited the property of their deceased son, each taking one-half. The plaintiffs in this action are Maria Moore and the two children, Amanda M. Moore and Jane I. Boyce. By their petition they claimed the one-half of the land. The court below held that Maria Moore was not entitled to any interest therein, but that the said children were each entitled to one-sixth thereof. Plaintiffs are content with the decree, but defendant, who holds by conveyance from the mother of Abraham Moore, insists that it is erroneous, upon -grounds which we will proceed to examine.
In the first place it is proper to say that the effect of the decree in -the court below is to hold that the two children who are plaintiffs inherited from their father the same as though they were born in lawful wedlock. "We do not understand that counsellor appellant questions their right to inherit, in view of their recognition by ‘their father. The effect, of the decree is, further, to invest the defendant, who is the grantee of the mother of decedent, with one-third of the one-half which was inherited by the father.
It is contended, however, that the plaintiffs can recover no interest whatever by reason of the statute of limitations. The evidence shows that Mary McYicker and her husband, Simon McYicker, by a deed dated February 24, 1868, quit-claimed all their right, title and interest in the land in controversy to John Antili, the defendant; that the defendant entered upon the land, which was prairie, in May, 1868,' and broke up about sixty acres; that in the spring of 1869 he enclosed the same
A few days before Abraham Moore enlisted in the army he left in the hands of one Ramsey a few lines written and signed by himself, in which he directed that all his property, in case of his death, should go to his mother. This writing had no witnesses to it, and it does not appear that it was authenticated in any way, except by the signature. It was handed by Ramsey to one Crawford, who sent it to the mothei of deceased, who then resided in Indiana. This writing was lost. It is not claimed that it was an informal will, but that, though informal and ineffectual to pass the title, it was sufficient to make color of title, and thus support the plea of the statute of limitations. Rut it does not appear from the acts of the defendant that he relied on this writing as the source of his title. On the other hand, it clearly appears that at the time he took the quit-claim deed he was advised that if Andrew Moore was living, or if he had heirs who inherited from him, they were tenants in common to the extent of their
It further appears that tbe defendant, after bis purchase, allowed tbe taxes to become delinquent and tbe land to be sold and title taken in another, who conveyed to defendant with a view to perfect bis title. As we understand it, where a party relies upon color of title, in support of tbe statute of. limitations, be must rély upon bis color of title and bold possession under it.
This disposition of the case' renders it unnecessary to dispose of tbe motion filed by apjiellees to strike out certain parts of tbe record in tbe cause.
Affirmed.