21 Iowa 201 | Iowa | 1866
Norris claims to recover the entire purchase-money, because he got no title .by the conveyance to him; while MeGaffick claims that Norris got a complete title by the conveyance, and has no right'to recover.
In order to present an intelligible view of the questions made, it is necessary to set out the language of the statute of distributions bearing upon them. Sections 1410 and 1411 of the Code of 1851, were as follows:
“ 1410. If the intestate leave no issue, the one half of his estate (including the dower of the wife) shall go to his father, and the other half to his wife; and if he leave no wife nor issue, the whole shall go to his father.
“1411. If his father be previously dead, the portion which would have fallen to his share by the above rules shall be disposed of in the same manner as though he had outlived the intestate and died in the possession and ownership of the portion thus falling to his share, and-so on through each ascending ancestor and his issue, unless heirs are sooner found.”
Chapter '63 of the Laws of 1858,'now a part of the Revision of 1860, is as follows:
“ Section 2494(1). Be it enacted by the General Assembly of the State of Iowa, that sections 1410 and 1411 of the Code are hereby repealed, and that the descent of property -as prescribed by these provisions, of the Code be modified as follows: Section 2495(2). If- the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to his wife; if he leave no wife,the portion which would have gone to her shall go to his parents.
“ Section 2496(3). If one of his parents be dead, the portion which would have gone to such deceased parent shall go to the surviving parent, including the portion which would have gone to the intestate’s wife had she been living.
“ Section 2497(4) (lias no bearing on this case).
*204 “Section 2498(5). If the' mother be the surviving parent, as contemplated in section three of this act (Rev., § 2496), she shall take only a life estate in the intestate’s property, and, after her death, it shall go to the children of her body, if there be any, had by her deceased husband, he being the ¡father of the intestate. If there be no such children, nor issue -of such children in the descending line, then the intestate’s property shall be divided between the nearest heirs of the father and mother of the intestate, share and share alike, and, after such distribution is made, the same rules shall be applied to any further distribution thereof as prescribed in this ■act.”
Having thus before us the agreed statement of facts and the law as it formerly stood, as .well as the law now in force and governing the same, there is hut little difficulty in determining the question.of title presented by the parties in the case.
The intestate, George W. Pent, left no issue; and in such case, by the first clause of section 2495, one-half of his estate would go to his parents and the other half to his wife. Rut he left no wife; and in such case, by the last clause of the same section, the portion which would haye gone to her, would go to his -parents, his father and mother. But, further, we find that one of his parents, to wit, Philip Pent, his father, was dead; and, in such case, by section 2496, the portion of such parent goes to the survivor. But, finally, we further find that the surviving parent is the mother; and, in such case, by the first clause of section 2498, she takes only a life .estate in the intestate’s property.
It follows, therefore, that Matilda McGaffick acquired only a life estate in the real estate of her son, George W. Pent, deceased; and that the plaintiff, John P. Norris, did not acquire a title in fee simple to the real estate in controversy, by reason of the heirship of Matilda and the
The judgment of the District Court' is therefore reversed, and the cause is remanded. If the parties fail to agree as to the terms of rescission of the contract of sale and conveyance of the real estate, the District Court will, after full hearing, enter such judgment as required hy the facts to be sbowu and the rules of law and equity applicable thereto, allowing Norris for interest and charging Mm for rent; or, in ease he elect to keep the title he has, to ascertain its value, and award Mm judgment for the balance, or the like.
Reversed.