35 Iowa 512 | Iowa | 1872
One of the alleged grounds upon which plaintiff claims that James Ritchey held the title to the land'in trust for his son, John B. Ritchey, is that the latter paid or furnished the purchase-money. This allegation the evidence fail's to establish. There is no direct evidence of the fact. The plaintiff, Margaret A. Peters, who was the wife of John B., testifies as follows : “John B. Ritchey, my husband, furnished the money; I always heard him say that his father had bought this tract and other land together; that the money was partly his and partly his father’s that bought the land, and I know he helped his father pay for it; have often heard his mother say so; this I know positively.” She further testifies that her husband and his father had to pay for some of the land twice, and that her husband borrowed the money of Jairus Neal to pay with. The first part of this testimony is objected to because hearsay, which it undoubtedly is, and clearly incompetent; and the statement that her husband borrowed money to pay on the land, is directly disproved by Jairus Neal, a witness for plaintiff.
Elkanah Perdew, a witness for plaintiff, says that in 1841 or 1842, John B. Ritchey applied to him to borrow $100; that James Ritchey came with John B. and offered to become his surety for the money, and that they both stated that the money was to make a payment on John B.’s land; the witness does not state that the money was loaned by him, but leaves the inference that it was not. This is all the evidence tending to show that John B. Ritchey furnished any of the purchase-money for the land. It
The other ground upon which a trust is claimed is that if James Ritchey did advance the money to purchase the land, he did so and held the title in trust for John B. Ritchey under an agreement to pay the latter for work and labor performed by him for his father after he became of age, and through natural love and affection, and that under said agreement John B. was to go on and cultivate and improve the land as his own, and his father would convey the same to him when requested.
In our opinion these averments are, in respect to part of the land, clearly and satisfactorily proved by the evidence. It is shown that John B. Ritchey labored for his father upon the farm of the latter for four or five years after he became of age; that he.was a good and industrious hand and of temperate habits; that when John B. Ritchey was married in 1844, he entered upon the possession of the south forty acres of the tract in dispute, and broke and fenced it, built thereon a barn, brick smokehouse, dug a well and planted an orchard, and purchased a half acre of land contiguous thereto for a building spot and erected thereon a brick dwelling-house, in which he and his family resided; all this was done with the full knowledge and acquiescence of James Ritchey, who resided all this time on the farm adjoining this land. The evidence also shows that with the full knowledge of James Ritchey, his son John B. held possession, improved, cultivated and used the land in all respects as his own property from the time he first entered thereon until the time of his death in 1852, a period of about six years; that James Ritchey repeatedly and on divers occasions admitted to different persons that the land thus improved
Although the evidence of the agreement, alleged in the petition, is principally circumstantial, yet, taking all the circumstances developed by the testimony, they are entirely satisfactory. They are, as we think, entirely inconsistent with any other hypothesis. While the entire agreement is not distinctly proved, by direct evidence, it is as satisfactorily established by circumstantial evidence, and our conclusion is that in consideration of work and labor performed by John B. Ritchey, after his majority, his father agreed and promised that he would convey the same to him, and that on the faith of such agreement John took possession of the land as his own and erected thereon valuable and permanent improvements.
Upon this state of facts a court of equity will hold James Ritchey estopped from asserting his naked legal title, and will compel a specific performance. John B. Ritchey having executed his part of the parol agreement and entered into possession, and made valuable and permanent improvements on the land, in the confidence that
A court of equity will, in such case, decree specific performance. Id.
The defendants, who are devisees of James Ritchey, with full knowledge of the facts that John B. Ritchey was in possession of the land in his life-time as owner, and had erected permanent and valuable improvements thereon, can occupy no better petition than their testator’. They took under the will subject to the sanie equities that existed against him in respect to this land.
II. We are next to inquire whether the action is barred by the statute of limitations as to any or all of the plaintiffs.
It will be observed that this action was commenced within one year after James M. Ritchey, one of the heirs of John B. Ritchey, attained the age of twenty-one years, but more than that length of time after Joel C., his brother, arrived at that age.
It is insisted by appellant’s counsel that these parties being joint tenants, and as the statute gives a minor one year after majority in which to bring his action, the right of action is saved to both joint tenants. Under the statutes of this State, however, the plaintiffs are tenants in common. (See Rev., §§ 2436, 2437 2414.) There would be no survivorship in the event of the death of one of the heirs. Each may bring an action to recover his own interest without joining his co-tenant.
In the case of tenants in common where there has been an adverse possession during the time limited by the statute, one of whom is within the saving clause of the statute, the right of the others is not thereby saved. Jackson v. Brandt, 2 Caines, 169; Angell on Lim., § 484; Moore v. Armstrong, 10 Ohio, 11; Bronson v. Adams, id. 135. It has been held in cases of joint-tenancy, where all must join in the action, that if the' action is barred as to one it operates as a bar to all. Mar
So that if the action would otherwise be barred as to Joel C. Ritchey, it is not saved by reason of the disability of James M. Ritchey. As to the latter the action was not barred at the time it was commenced (Rev., § 2747), he having, at least, one year after he became twenty-one years of age in which to commence his action.
On' the death of John B. Ritchey, his widow, now Margaret A. Peters, became entitled to one-third of the land in fee simple, and her two children — the other plaintiffs — each to one-third also.
Without stopping to discuss the question as to whether the statute began to run immediately on the death of
The cause will be remanded to the district court to enter a decree in conformity with this opinion.
Reversed.