123 Iowa 585 | Iowa | 1904
The land, the conveyance of which is here in controversy, is a part of the numerous tracts involved in a litigation which beg’an about the year 1877, and had the attention of this court in Am. Em. Co. v. Fuller, 83 Iowa, 599; American Emigrant Co. v. Rogers, 83 Iowa, 612; American Emigrant Co. v. Long, 105 Iowa, 194. The title which defendant undertook to convey to plaintiff was supposed to be-derived from the so-called “swamp-land grant,” and with the similar title to other tracts was contested in a series of cases begun at or near the date above mentioned. In the trial court the swamp-land claim was at first confirmed, and in each case an appeal was taken to this court. By a stipulation of counsel the trial of such appeals was suspended in all cases except that of the American Emigrant Co. v. Rogers Locomotive Works, which was to be prosecuted as a test case. Final decision of the last-named case was not reached in the-Supreme Court of the United States until December 7, 1896, and the result therein was the invalidation of the swampland title. 17 Sup.Ct.Rep. 188, 41 L. Ed. 552. Notwithstanding the stipulation above mentioned, the party claiming title under the swamp-land grant conveyed the land involved in this action to one II. E. Long, who in turn conveyed it to the defendant, both conveyances being made while said appeal was pending and undetermined. The negotiation of the-transfer from Long to defendant was conducted by one Gifford. ' It appears in evidence that Gifford was also directly interested with defendant in the purchase, the latter agreeing in a separate writing to convey one-half the land to the-former on demand, or to pay to him one-half the proceeds- of the sale thereof. The abstract of title on which the purchase was made disclosed that an appeal had been taken from the-decree which confirmed the swamp-land title, but made no-mention of the stipulation to which we have referred. After the decision of the test cáse the party representing the-swamp-land title in the case directly involving the lands now in question sought to escape the effect of the stipulation by denying the same, and denying the authority of counsel to en
The trial court, after hearing all the evidence, arrived at the conclusion that Gifford was a necessary party to the record, and on its own motion entered in the record what is called a “preliminary decree,” requiring plaintiff to amend and bring in said party by notice, or upon failure to comply
There is, we think, enough in the record to show tbe plaintiff’s right to the relief asked without stopping to discuss the relation of Gifford to the defendant in bringing about the conveyance. Yet we regard it; very clear that, while he had a personal interest in the sale, he was also the agent of the defendant, and that his statements and representations made to the plaintiff in the course of the negotiations must therefore be considered as if made by the defendant himself. If Gifford were a party to the record, it would, of course, be eminently just to hold him to his full share of responsibility in this matter. But his absence in no manner affects the measure of the defendant’s liability. Whatever may be the right of the latter for contribution from the former, his liability to plaintiff is for the full amount received by him, and for the costs imposed upon plaintiff in the case against Leibpke. It was defendant who held the supposed title; it was he alone who assumed to convey it; and it was
III. The plea of the statute of limitations cannot prevail. In the first place, if we assume that the statute began to run when plaintiff discovered the truth as to his title, there is no proof in tire record when that discovery was made. If we regard it as being brought to light in, and established by the adjudication in Am. Em. Co. v. Long, supra, and Weise v. Leibpke, supra, both of these decisions were within the period of five years immediately before this suit was begun. Wo think, moreover, it may fairly be said that'until the Leibpke Case, begun by defendant for the express purpose of determining whether his deed did in fact convey a title, had been determined by the court, it was not legally j)ossible to say whether there had been any mistake or misrepresentation, and the statute of limitations would not run.
The decree of the district court will be reversed, and cause remanded for decree in harmony with this opinion; or appellant, if he so elect, may have decree entered in this court. — Reversed.