Weaver v. Carpenter

Beck, J.

i conveySpi™' chaser: inmrt. I. The execution of the deed for the land in controversy by the plaintiffs is not denied. It is alleged, however, that the contents and effects of the instrument were unknown to them at the time of its execution, which was procured by fraud by plaintiffs’ *347 brother acting for the grantees. Let this position be admitted. If it be found that the title passing by this deed is vested in an innocent purchaser, plaintiffs, cannot now defeat it. This is a familiar rule of law and its observance is essentia! to the security and quiet of land titles, if deeds for land, upon which the titles of innocent purchasers rest, should be set aside because of fraud practiced upon the grantors by reason of their negligence in failing to read the instruments, or in some other way to acquire a knowledge of their purport and effect, no titles would be secure against assaults of the dishonest; the written muniments provided by the law for the protection of land owners would fail of their purpose. Public policy, as well as protection of the property of the citizen, .demand the maintenance and due enforcement of the rule we have announced.

a_. _. ■ ~ '• II. The evidence establishes without a doubt that Hathaway was a purchaser in good faith and for value and had no notice of the facts alleged in plaintiffs’ petition, or of their claim based thereon. ITe exercised proper diligence to ascertain the true condition of the title to the land by causing a search of the records of the county, and purchased in the confidence that ho was acquiring a good title. "Wells, the plaintiff in execution and purchaser under the sheriff’s sale, had no notice of plaintiffs’ alleged equities. He is protected from outstanding equities of which he had no-notice, like any other purchaser. Gower v. Doheney, 33 Iowa, 36 .

3__. llrmance of1" deed- Ill: Mrs. Gates, when the deed was executed, had not reached her majority. But a minor in this State is bound by his deed, unless he disaffirms it within a reasonable time after he comes of age, and restores the consideration in his control after his majority. Code, § 22-38; Jenkins v. Jenkins, 12 Iowa, 195 . No act of disaffirmance by Mrs. Gates is shown, prior to the bringing of this suit, a period of more than thirteen years after she attained her majority. Certainly it cannot be claimed that this is a reasonable time. But it is urged that plaintiffs were not advised of the frauds perpetrated upon them until about the *348 time of the commencement of this suit, and Mrs. Gates, therefore, disaffirmed her deed as soon as she was informed of its existence. In our opinion she is justly chargeable with negligence in making no effort to discover the true purport and effect of the instrument she executed to Carpenter and others. She confesses to a knowledge that it concerned or affected her lands; according to her statement, it authorized their sale by the parties to whom it was given. Surely, common diligence would have prompted her to inquire whether the power she supposed the instrument conferred had been exercised, and whether she still remained the owner of the property. Inquiries directed to the attainment of knowledge upon these points would have disclosed to her the true character of the instrument she executed. During the long period intervening after her majority and prior to the commencement of the. action, she made no inquiry in regard to the lands and paid no taxes upon them. Had she discharged the duty incumbent upon all good citizens to pay the taxes upon this property, she would have discovered that the instrument she made was a deed and that the lands were held by one claiming title adversely to her. Her negligence, whereby she was kept in ignorance of the existence of the deed, will not excuse her for failing to disaffirm it within a time which, in the exercise of reasonable diligence, would have been sufficient for the discovery of the fraud she alleges was practiced upon her.

. In determining what is a reasonable time under the statute for disaffirmance of a minor’s deed, the rights of others who. may be affected by delay must bp considered. The same is true when questions of fraud or concealment are connected with the execution of the deed and the right of disaffirmance. It would not be equitable to extend the time so that innocent purchasers would acquire titles and make improvements, relying upon the validity of deeds which appear of record. Their safety, it is plain, demands that disaffirmance should not be delayed ten years.

*349

4 jtjkisdicof°noiiee1:Viee partnership,

*348 IY. The land was conveyed by plaintiffs to Reynolds Cai’penter, Jr., Blackmar Brownell and Andrew P. Carpenter. In "Wells’ attachment proceedings, judgment, execution and *349 sheriff’s deed, the name of Blackman E. Browning appears histead of Blackmar E. Brownell. It cannot be claimed that under these proceedings, Brownell’s interest in the land is divested.. The failure to make him a party to the action is not, as defendants’ counsel maintain, caused by the fact that, as the note was executed by the co-partnership of which he was a member, service of process upon one partner gives jurisdiction over the firm. This is true when the action is brought against the firm. In. this case it is not. It is true that the action might have been brought against the co-partnership by name. It was properly, brought against the partners individually. The service of process upon one co-defendant cannot give jurisdiction over another that was not served.

Y. It is also urged that, as Brownell does not. and cannot object to the sufficiency of the proceedings to divest him of the land, the plaintiffs cannot urge the objection to them. But this position leaves out of view the rights and claims of plaintiffs. If the title be in Brownell, and as against him plaintiffs are entitled to recover the land, surely his failure to assert title, or his assent to the validity of the title of the other defendants, ought not to defeat plaintiffs’ rights. If such were the law, it would place the rights and claims of plaintiffs subject to the will of Brownell.

s statute of limitations: non-residents. YI. Upon the defense based upon the statute of limitation, set up by the defendants, it is only necessary to say that all of ^ defendants, as well as the plaintiffs, were nonresidents of the State until three years prior to the commencement of this action, when Hathaway took possession of the land. All the other parties are still non-residents. The statute will not run i.n favor of the defendants while they were non-residents of the State. Code, § 2533; Heaton v. Fryberger, 38 Iowa, 185 ; Gillett v. Hill, 32 Id., 220 ; Penley v. Waterhouse, 1 Id., 498.

YII. Whether, as between Browning and plaintiffs, the latter are entitled to recover the interest held by him in the land, the proceedings instituted by Wells being insufficient to divest him of title, we cannot inquire. The decree *350 of the court below awards to the plaintiff, Mrs. Weaver, one-sixth of the land, being the interest of Brownell, and to Mrs. Oates one-half, holding that she is entitled to recover to the full extent of her claim. As we have held that the sheriff’s deed does not divest Brownell of his interest in the land, he is entitled to it if plaintiffs do not recover. But he does not unite in appeal to this court. As between plaintiffs and him, the decision of the court below not being appealed from can not be reviewed.

The decree of the court, so far as it awards to plaintiffs the interest of the land held by Brownell, is affirmed. As to the other defendants who have appealed, the petition of plaintiffs will be dismissed. A decree in accord with this opinion will be entered here, or at plaintiffs’ option the cause will be remanded to the District Court for that purpose. Defendants who appeal will pay the costs of this court.

Modified and affirmed.