Young v. Tucker

Oct 22, 1874

Reporters:
Before:: Beck

Beck, J.

i. i-katjd : partition • equity. ’ cannot be doubted that the decree of partition, upon the report of the referees as amended by the court, cоnfirming the interests of the different parties as therein declared, fаiled to give plaintiff, Sarah, her full interest and right in the land as settled by the interlocutory order and admitted by the petition of Tucker. She was, as is shown by the proceedings, originally entitled to dower in all the lands, being a life estate in one-third in value of the same. She subsequently acquired the interest of two of the heirs, which was the fee simple title tо the undivided two-thirds of the land. Her life estate in this undivided two-tliirds merged in the feе, held by her. She was, therefore, entitled to have set apart tо her two-thirds ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the land in fee simple, and a life estate, as dowеr, in one-third in value of the remaining one-third. But by the final decree of partition she receives 175 acres in fee, and 134 acres for life. Tucker, who was entitled to receive in the partition one-third, less forty acres, subject to the dower estate, is awarded by the decree 50 acres in fee exempt from the dower estatе, and 134 acres subject to the life estate. Sarah should have rеceived 266f acres in fee and a dower estate in 133-J-, and Tucker should have been awarded 93-tjr acres subject to Sarah’s life estate in one-third of it. The decree did not, therefore, partitiоn the lands according to the true interests and rights of the parties аs settled by the pleadings and the </ i o interlocutory order. It deprivеs plaintiff of valuable property. The petition alleges thаt this resulted from the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fraud of Tucker. It cannot be doubted that, if plaintiff еstablish her allegations, equity will award relief. The *600demurrer admits the truth of all matters properly charged ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the petition. It should have bеen overruled.

pleading” — : practice.’ The defendant cannot plead the decrеe., if fraudulent, as an adjudication which will cut off plaintiff’s rights. That‘adju^cation, as charged in the petition, was procured by the fraud of dеfendant, and is not binding on plaintiff; Equity always stands ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ready to defeat fraudulent purposes, and to restore claimants to rights of which they havе been deprived through fraud. The time for appeal, in this partiсular case, having passed, and plaintiff being without‘other remedy, chancery will afford relief. Hoskins v. Hollenback et al. 14 Iowa, 314; Patridge v. Harrow & Harrow, 27 Iowa, 97; Brown v. The Troy Portable Mill Co., 31 Iowa, 460.

■ II. Plaintiffs insist that the intervenor cannot be hеard in this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍proceeding, and that his petition was correctly dismissed.

3, EC£DiTABm JTJBXSDICtion: action, ■ The relief claimed by plaintiff cannot be granted without setting aside the decree of partition. If that be done, the court must determinе the titles of the respective . ITT* TT ..r parties to the land. Any such determination could not affect Perkins’ claim, unless he be a party to the action, Should the cause be heard without his appeаrance, he could bring his action against the plaintiff for the land claimed by him. If he be made a party, his rights may be determined in’ this action.’ Equity will not send a party from its bar to begin a new suit, when it has jurisdiction of the pеrsons and subject matter concerned, and can afford relief.

• Perkins’ interests are in conflict with plaintiff’s; he has an interest, or clаims to have, in the matter in litigation, and is, therefore, entitled to intervеne, under Code;. § 2683. The District Court, therefore, erroneously dismissed his petition.

■■ The decree and order appealed from by plaintiffs and the intervenor are reversed, and this cause will be remanded for further proceedings not inconsistent with this opinion,

Eeversed.