I. The property involved in these suits is a
The plaintiff is the guardian of his insane mother, Helen Thode, who holds the title of the property, unless it be divested by certain tax sales and deeds, and an alleged adjudication, upon which defendants base their respective titles.
Defendants claim title under several tax sales and deeds, some of them for city and the others for state and county taxes. The tax deeds were all made to defendant, Spofford, and the last one was executed July 10th, 1874, upon a sale for taxes made Oct. 3, 1866. The other deeds were made upon prior sales.
The property formerly belonged to John IT. Thode, and was conveyed by him in 1863 to J. IT. Phillips, who immediately conveyed it to Helen Thode, wife of J. H. Thode, and now plaintiff’s ward. It is alleged in the answers of defendants that these conveyances wei-e made for the fraudulent purpose of defrauding the creditors of John IT. Thode. We find that this allegation is not sustained by the proof.
J. H. Thode leased the separate lots claimed by the respective defendants, Stowe and Bird, to them, and each went into possession under his lease, which, in each case, granted a term for five years. Stowe’s lease was executed August 16, 1870; Bird’s on the 22d of May, 1871. Each of the defendants paid rent to Thode until October, 1874; after that date, to Spofford, who conveyed to Stowe the property claimed by him, November 2, 1875, and conveyed to Bh’d the other part of the lot May 31, 1877. Thode assigned the Tease executed by Stowe to Spofford, October 1, 1874. Helena Thode, the wife of J. H. Thode, was, in proper proceeding in the county court of Polk county, on the thirteenth day of February, 1866, declared insane, and an order was made directing her to be sent to the hospital for the insane at Mount Pleasant, and
The leases to defendants and the assignment of the Stowe lease to Spofford were not executed by Thode as guardian for his wife, nor is she or her interest in the property referred to in these writings.
Tbis decree is now pleaded by Spofford and tbe other defendants as an adjudication binding plaintiff It can bave no sucb effect. If Spofford’s answer be regarded as a cross-bill against Mrs. Tbode, sbe was not required to answer it without notice. It set up a cause of action against ber independent of tbe action of plaintiff. It was, indeed, an action between ber and Spofford, of which sbe could have no notice from tbe process served upon ber by plaintiff. In sucb cases, tbe law always has been tbat defendants to cross-bills or cross-actions brought by co-defendants must be served with notice of tbe claims made against them. . Tbis is tbe rule of our statute. Code, § 2663. In tbe absence of sucb notice,' tbe court has no jurisdiction to render judgment against Mrs. Tbode.
Devin v. The City of Ottumwa, 53 Iowa, 461, is not inconsistent with tbe conclusion we bave reached upon tbis point. In tbat case tbe defendants set up conflicting titles and claims to tbe land in controversy, but did not claim relief, tbe one against tbe other. It is not shown tbat the respective defendants did not bave notice of tbe claim of title made by tbe co-defendants. The decision is based upon tbe ground that tbe title was put in issue by the pleadings of the respective defendants, and, being so in issue, tbe decree quieting tbe title as to one would not be erroneous, for tbe reason that no direct claim for relief was made against tbe defendant appealing. As tbe question of title was an issue raised by tbe pleadings, there was no want of jurisdiction on tbe ground that no notice was served, for tbe reason tbat tbe appearance and pleading by tbe respective parties waived tbe necessity of process against them. In this case, tbe title of tbe property was not put in issue by tbe pleadings, so far as Mrs. Tliode was concerned, for her guardian ad litem makes no
We reach the conclusion that the title of the property is in plaintiff’s ward, and that he is entitled to recover in this action, and that the title ought to be' quieted in Mrs. Thode.
The evidence shows that payments amounting to $150 were made upon the taxes many years ago. This sum will not be deducted from the amount for which defendants are entitled to recover on account of taxes paid by them. The payments were made upon taxes, the recovery of which we hold is barred by the statute of limitations. They ought not to be deducted from taxes the recovery of which is not barred.
YII. We think the decree of the court below touching the value of the improvements, and the rental value of the lots, is substantially correct and in accord with the testimony. We have discovered no ground for changing them.
YIII. The cause will be remanded to the circuit court for a decree in accord with this opinion, which shall authorize plaintiffs to redeem within eight months from the rendition of the decree, upon payment of the amounts found due on account of taxes paid and improvements made, less the rental value of the property, at the date found by the decree of the court appealed from up to the day of redemption. Other
Reversed on plaintiff’s appeal.
Affirmed on defendants’ appeal.
SUPPLEMENTAL OPINION.
II. As to the taxes paid more than five years previous to the commencement of the suit, we have little to add in addition to what is said in the foregoing opinion. These taxes were paid at a time when Bird and Stowe were in possession under their leases. Mrs. Thode was then insane. There is no claim that they were made to protect her title. On the contrary, they were payments made with the purpose of depriving her of her title,, and we are not inclined to think that there is any equity in the claim for these taxes which should overreach the statute of limitations.
The former opinion.is adhered to.