112 Iowa 548 | Iowa | 1900
There is a dispute between the parties ‘as to whether this case was tried below as an equitable or law action. It is purely a law issue, and appellee insists it was so tried. Without deciding the point, we shall assume the position taken by appellee.on this matter to be correct, and will consider only the exception taken to the judgment. It is conceded that this land was the homesteal of John S. Davis, and that after his death, and down to the time of her decease, his widow continued to occupy it, taking no steps to have her dower interest set apart. Nor is there any dispute but that under the rule éstablished by decisions of this court, this occupancy amounted to an election by the widow to take a homestead right, and by this election she lost her dower interest, so that on her death she had no estate in this land which descended to her heirs. It was upon this ground that plaintiff succeeded in his action to quiet title. ' It is insisted, however, on plaintiff’s part, that the evidence of the fact that the widow of John S. Davis had forfeited her dower-right did not appear of record, but had to be obtained outside ; that the defendants in the action to quiet title weré the apparent owners of an interest in the land, and he had a right, at his grantor’s expense to remove the cloud; This presents the question whether a covenant of warranty runs
A number of other matters are discussed by counsel for appellant, but, as what we have said disposes of the case; we shall not further notice them. — Reversed.