Frisbie v. Chase

140 N.W. 842, 161 Iowa 133

• Court: Supreme Court of Iowa
• Decided: April 12, 1913
• Status: Published

Opinion

Evans, J.

Excepting the Judsons, the plaintiffs are nonresidents. They were the alleged owners of certain 18 lots, in blocks 5 and 8, of Galesburg addition to Council Bluffs, and had been such for thirty or forty years. They had a resident agent in Council Bluffs, who paid the taxes regularly upon such lots during the entire period. The lots were unimproved and covered to a greater or less extent with brush. No one ever contended with them for the privilege of paying the taxes; nor does it appear that their title was ever disputed until the bringing of the Chase suit. The facts immediately preceding the bringing of the Chase suit are as follows: One John Haile resided on the adjoining block 11. He claimed that for twenty years he had been in possession of blocks 5 and 8 also. He claimed also that he had an oral contract for their purchase with one Siedentoph, who held an alleged tax title on some of them. Haile was the real party in interest in the Chase suit. For the purpose of the suit, he made a conveyance of the property to A. E. Chase, who was a lady stenographer in the employ of Haile’s attorney. She had no interest whatever in the property nor in the suit, and claimed none. She simply loaned the use of her name as an accommodation to her employer and his client, and for the same reason verified her petition to quiet title without the slightest knowledge of the truth or falsity of the allegations therein. After obtaining the decree she conveyed back the property to Haile and his attorney, and various conveyances were then put of record. -The petition in that action averred adverse possession of both blocks 5 and 8 entire. Those blocks included 28 lots. The decree entered also covered, in terms, both blocks entire. Except Siedentoph, however, only nonresident and absent parties were made defendants, and the alleged ownership of these extended only to 18 lots. Resident parties who owned or claimed to own the remaining lots in the blocks were not made parties defendant. Siedentoph, the only resident, made no claim to the property, and had no apparent controversy with any one thereover. Haile knew the resident agent of the nonresident defendants, plaintiffs herein. The publication of original notice was made in a paper in Neola, a little town more than 20 miles distant from Council Bluffs. .

1. Judgments: vacation: It would be difficult, if not impossible,.to discuss this ease fully without trenching upon questions which are yet to be heard upon their final merits. We are disposed, therefore, to avoid discussion at the present time. A careful reading of the record constrains ns to hold with the trial court that there was actual, intentional artifice resorted to in the former suit to prevent a discovery by these plaintiffs, through their resident agent, of the pendency of attack upon their title, and that such artifice amounted to a legal fraud. The former decree was therefore properly set aside. The effect of such order is to open the case to a trial on its merits.

2’ fng™’suffl-aa' ciency. We do not overlook the fact that the petition herein is very general and indefinite in its allegations of fraud; hut there was no attack upon it in the court below. At. the close of the evidence the plaintiffs voluntarily filed an amendment, which added little, if any, to the original. The petition was sufficiently broad to comprehend the evidence introduced and to sustain the order entered by the court. Its lack of appropriate specification was as apparent at the trial below as it is now, and it was in no manner assailed.

The order of the trial court will he Affirmed.