66 Iowa 186 | Iowa | 1885
I. On the first day of September, 1875, John D. Eivers purchased an entire section of land, excepting forty acres, and gave a mortgage for $6,100, bearing 10 per cent interest, payable annually, to secure the whole of the purchase money. Ontheeighth day of February, 1876, heconveyed the land to H. A. Olmsted, subject to the mortgage, said Olmsted having assumed and agreed to pay the same. The sale to Olmsted embraced a large quantity of other land in Dallas county, and a lot in the city of Des Moines. Olmsted conveyed that part of the land above described to his son, Charles S. Olmsted, and on Jirly 3,1877, he made a conveyance of the same to II. D. McCall, and placed the same on record. McCall had made a contract with the said Olmsted for the purchase of the land, but what the terms of the same were does not clearly appear.
The contract was not understood alike by the parties, and Olmsted commenced an action against McCall in relation thereto. Eivers intervened in the action, and demanded the appointment of a receiver to take possession of the land and control the same. A receiver .was appointed, and the grounds for the appointment were that the notes and mortgage of Eivers were outstanding for the whole of the purchase money, no interest having been paid thereon, and if the payment thereof should be deferred, and the mortgage eventually foreclosed, the proceeds of the sale of the land would be insufficient to pay the mortgage, leaving a balance of the debt as a personal claim
In January, 1878, Rivers commenced an action in equity in the Polk district court against all the Olmsted family who had any connection with the title to any of the property which he had conveyed to IT. A. Olmsted, in which action he claimed that the contract under which he conveyed the real estate to IT. A. Olmsted was procured by Olmsted by certain false and fraudulent representations, by which Rivers was damaged in the sum of $25,000. The prayer of his petition was that all of the deeds and conveyances made by Rivers to the defendants in that suit, and by the defendants to each other, be canceled and annulled. He made H. I). McOall a party defendant to the action,'and demanded the same relief against him as against the other parties defendant. The original notice in that action was personally served on H. D. McCall on the nineteenth day of January, 1878. 'A notice of the pendency of the action was filed in the office of the clerk of the district court of Dallas county on the twenty-fourth day of January, 1878. All of the defendants, except McOall, filed their answer in that action on the ninth day of May, 1878. McCall made no appearance. The answer was a full denial of all fraud, and it made full and copious charges
On the twenty-ninth, of'November, 1881, Rivers filed an amendment to his petition, setting forth that after the beginning of the action Charles S. Olmsted had conveyed part of the land to James G. Olmsted, and placed the same on record without the knowledge of James G. Olmsted, and that the same should be canceled of record, and that the said James G. Olmsted, H. A. Olmsted and Eannie S. Olmsted had conveyed their interest in the property in controversy to Robert James, and that it was necessary that he should be made a party defendant. On the same day the answer of Robert James was filed, in which he admitted the allegations of the petition and amendment thereto, and consented to judgment and decree as prayed. It is somewhere stated in the record that this answer was prepared and filed by Rivers, and we do not understand that this fact is disputed. The answer was signed by James in person. On the next day Rivers dismissed the action “ as against defendant Olmsted,” and took leave to make James a party.
On the twenty-fourth day of December, 1881, Rivers procured a default to be entered up against McCall, and on the same day he caused a decree to be entered canceling the deed made_ by himself to H. A. Olmsted, and all deeds subsequently made by all of the defendants, and reinvesting the title to all of the property in himself. McCall had no know!1 edge of the transfer of the cause from the district court, and no knowledge of the default and decree against him, until March, 1882, when he at once filed in the circuit court a
III. "We come now to the controversy between John D. Rivers and McCall; and we desire to say, in entering upon the consideration of this part of the case, that we have not stated all of the facts contained in the pleadings. To do so would involve very great labor. There was no agreed abstract, and we have been compelled to resort to the transcript; and oven the transcript is not complete, and we may not be entirely accurate in stating the dates of some of the trans
As to the rightfulness of this adjudication there can be no doubt. The original decree ivas a fraud upon its face. It reinvested Rivers with the full title to all the property, excepting the liens of the mortgages, without any return of the consideration he had received for. his conveyance. The connection 'of Janies with the title was, to say the least, exceedingly suspicious. The connection between Rivers and McCall in the litigation with Olmsted in Dallas county, the transfer of the case from the district to the circuit court without the knowledge of McCall, and allowingtlie action to remain upon the docket for three years without a default against McCall,- — • these, and other admitted facts in the case, fully substantiated the claim of McCall that he never in fact knew that an original
This is about all that is necessary to be said in this case. Eivers did not stand upon the adjudication against him setting aside his decree. McCall, as he had the right to do, aswered his petition, and the cause came on for trial. The burden was on Eivers to prove the averments of his petition. He introduced no evidence, and the circuit court very properly dismissed the petition, and that was the end of the case as to John D. Eivers; and as Louisa Eivers had no interest in the controversy, the decree, in accordance with the prayer of the independent petition of McCall, quieting the title to the land in him, was properly entered.
Affirmed.