Laverty v. Sexton & Son

Beck, J. —

The petition alleges that John M. Laverty; deceased, was, at the time of his death, the owner of certain lands described' therein; that plaintiffs are his executors and have, under'the provisions of the will, control and possession of the land, and that the decedent was in the actual possessiofi thereof from 1850 to the day of his death, and since that time the land has been in the occupancy of plaintiffs. - The petition shows that defendants claim title to the property under a tak deed executed in 1867, upon a sale made in 1863, for the delinquent taxes of 1861. The petition prays that the cloud upon the title of the land created-by the tax sale and deed 'bé removed and the tax deed be cancelled. The defendants deny the allegations of the petition, or aver that.they have .no sufficient knowledge or information to answer thereto, and thus put in issue' all averments' of the petition. ’ 'They further, set up. that they hold a valid- tax title, and. show that' plaintiff’s *437 cause of action accrued' more than five years prior to the commencement of the suit, and is therefore barred under section 902, of the Code.' They claim that under the tax sale and deed they are the owners of the land, and pray that their title be quieted, and that they may recover possession of the property.

I. It is first urged by defendants that plaintiffs have not such an interest in the land as will authorize them to bring this action.

i action-parties: win. ; The will nominating plaintiffs as executors gives them the Control and authority to manage all the property of deceased, anc*- emPowers them to rent the lands and do all things necessary to carry out the provisions found in the instrument. To the plaintiff, Electa Laverty, the rents of all the land during her life are bequeathed, and at her death it is to be divided between certain legatees named, each to receive a portion described as a given fraction of. the whole value' of the proceeds of the estate. Upon an application made to the proper court, the plaintiffs were authorized to sell the land for the payment of debts against the estate.

' From this statement of facts it very plainly appears that plaintiffs have a possessory and trust interest in the lands. While the title is not vested in them, the possession and control of the land is given to them as executors for the purpose of carrying out the provisions of the will. Their trust interest is sufficient under Code § 3273, to authorize them to maintain this action. This section provides that “ An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto -though not in possession.”

2. tax deed : fSons^ac?" tl0“ II. From the evidence we find that the decedent and plaintiffs, as executors, held continuous possession of the land UP to the commencement of the suit, and to the day of trial. To defendant’s cross petition for the recovery of the land, Code, § 902, is a bar, as the tax deed was not executed and recorded within five years of the commencement of the action. In Brown & Sully v. *438 Painter, 38 Iowa, 406 , we held that this provision operated to bar an action brought by the holder of the tax title; it is not intended alone for his protection, but may' be pleaded against him. Under this decision defendants cannot recover the land in this action, and the adjudication herein upon their cross bill will operate to defeat any future claim he may set up to the land. The parties’ rights to the property being thus settled in this action, the decree quieting plaintiffs’ title was properly rendered.

III. It is insisted by defendants’ counsel that the decree is erroneous, inasmuch as it quiets the title in plaintiffs, when in truth the title to the land is not in them. But, as we have shown, they have a possessory interest in the land, and claim no more. The decree must be understood to quiet the title of plaintiffs to the interest and right they claim in a fiduciary capacity to the land. In this view, there is no objection to the decree.

3 i'leading: generarefief: practice, IY. One of the defendants, Pliny T. Sexton, holds a conveyance to the land from the other defendants, who were the grantors in the tax deed. The decree provides that his deed be canceled. This, it is urged by defendant’s counsel, is erroneous, because no such relief is asked in the petition. But there is a prayer for general relief, and Pliny T. Sexton is made a party, and his claim of title to the land is sufficiently averred.- Under this condition of the pleadings, the relief against him, granted by the decree, was proper, as it is consistent with the case made by the petition. Wilson v. Horr, 15 Iowa, 489 .

The foregoing discussion meets all the objections to the decree raised by defendants. It is, therefore,

Affirmed.