Everett v. Croskrey

69 N.W. 1125, 101 Iowa 17

Opinion

Ladd, J.

The issue tried was whether the defendant owned one-sixth of the land, as stated in the petition, or one-half thereof, as alleged in the answer. In other words, the title to one-third of the land was in dispute, and was adjudged to be in the plaintiffs. 92 Iowa, 333 (60 N. W. Rep. 732). Thereafter the parties, by the execution of deeds, divided the lands, giving to each the portion awarded by the decree. The title, only, was contested, and no partition made by the court. In McClain v. McClain, 52 Iowa, 272 (3 N. W. Rep. 60), it is said: “While in form this is an action for partition, yet it is essentially an action to determine the title, which was in dispute. We do not think, in such a case, the fees of plaintiff’s attorneys should be taxed as part of the costs.” See also, Duncan v. Duncan, 63 Iowa, 150 (18 N. W. Rep. 858). The statutes contemplate the payment of plaintiff’s attorneys for services essential to the accomplishment of actual partition of the real estate, by all parties, in proportion to their interests. Attorney’s -fees, however, for services rendered in the determination of issues wherein the title to, or some interest in the property is in controversy, should not be allowed or taxed as part of the costs. — Reversed.

Kinne, C. J., took no part.