Willard v. Wright

45 N.W. 886, 81 Iowa 714

• Court: Supreme Court of Iowa
• Decided: May 29, 1890
• Status: Published

Opinions

Beck, J.

I. The petition alleges that the plaintiff is the owner in fee simple of certain lands, and that defendant makes some claim thereto. The relief asked is that the title of the lands be quieted in plaintiff. The defendants in a cross-petition allege that they hold the lands as heirs of S. B. Willard, who died seized thereof; that before his death he made a will devising the property to plaintiff ; that it was signed by but one witness, and the testator at the time of the signing of the will was not possessed of his reason, and that after the death of the testator, the plaintiff fraudulently obtained possession of the will, and fraudulently procured it to be admitted to probate, and caused himself to be appointed as administrator; that he made a final report, and caused a temporary executor to be appointed, who executed a deed to plaintiff for the land in controversy. The relief prayed for in the cross-petition is that the deed executed by the temporary executor be set aside, and that the will be held for naught. The plaintiff in reply denies the allegations of fraud in the cross-petition, and other allegations, which are not expressly admitted, and in an amendment alleges that the cause of action set up in the cross-petition is barred by the statute of limitations. A further recitation of the allegations of the pleadings is not required.

II. In our opinion, the cause must be finally disposed of upon the defense of the statute of limitations, pleaded to defendants’ cross-petition. Defendants in that pleading allege the invalidity of the will, and the probate thereof, on the grounds that the testator was non compos mentis when it was executed; that it was signed by only one witness before the testator’s death, and that the plaintiff fraudulently obtained possession of it, and fraudulently procured its admission to probate, his own appointment as executor, the appointment of a temporary executor, and tbe execution by him of a deed to tbe plaintiff. They pray in effect that tbe will and probate thereof be set aside. They allege in their cross-petition a cause of action, which if established by proof entitled them to that relief. It will be understood that the cross-petition is an institution of an action to avoid the will and the probate thereof. This action is permitted to be prosecuted as a defense to plaintiff’s action, on the ground that if it is successful it will defeat plaintiff’s action, and for the convenience of the parties, and to avoid the prosecution of two distinct and independent suits instead of one. The law and the practice long prevailing in this court permit the defendants to prosecute their action in this way, joined with the plaintiff’s action. Their action is instituted by a pleading called a cross-petition, which in chancery practice is denominated a cross-bill. Code, sec. 2663. It cannot be doubted that the plaintiff may plead any defense to defendants’ action presented in his cross-petition, which he could have pleaded, had defendants first brought the action. Nor could it be denied that, if plaintiff establishes his defense pleaded to the cross-petition, defendants’ cross-action is defeated with the precise effects thatwould have followed had the defendants first brought the action. If plaintiff ’ s defense to the cross-petition be established, the will, probate thereof and the deed to him by the temporary executor will all stand for naught, so far as plaintiff’s right and claim are concerned, The reply of plaintiff to defendants’ cross-petition alleges, and the evidence establishes, that the will was admitted to probate, October 2, 1882. The estate was settled under the will, but the dates of some of the proceedings, as that of the final report of the executor, seem to be.erroneously given in the abstract. But these inaccuracies are unimportant, as they all rest upon the validity of the will, and the probate thereof. This action was commenced, January 24, 1889, more than six years and eight months after the probate of. the will.

Now, it may be assumed for the purpose of the case tbat the probate of a will may be set aside after the final settlement of the estate thereunder, if timely proceedings therefor be instituted. We must, therefore, inquire if the defendants’ cross-action to set aside the probate of the will, and the will itself, was commenced in time to escape the bar of the statute of limitations.

III. Actions “founded upon unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, ’ ’ must be brought within five years after these causes accrue. Code, sec. 2529, par. 4. There is no provision of the statute applicable to the cross-action brought by defendants in this case extending the period of limitation. Actions founded on written contracts, on judgments of any courts, except those otherwise provided for, and those brought for the recovery of real property, must be brought within ten years, and those founded upon the judgments of courts of record within twenty years. Code, sec. 2529, pars. 5, 6. These are the only provisions extending the period of limitations beyond five years. It is obvious that neither is applicable to the case in hand. It is claimed in argument that this is an action to recover real estate. The plaintiff’s action may be, but defendants’ cross-action is not. It is an action to invalidate a will, and to set aside the probate thereof. It is true that the judgment in the action may affect the title in the lands, as it incidentally affects a muniment of title. Other property and other interests are affected by the action, besides those pertaining to land. It cannot be said that an action to set aside and invalidate a j udgment of a court of record is an action to recover land for the reason that it affects the titles to lands by removing or maintaining a lien thereon. Nor can it be said in this case that defendants’ cross-action is to recover land for the reason that it seeks to set aside a will which is a part of the chain of title to lands. These considerations lead us to the conclusion that defendants’ cross-action 3s barred by the statute of limitations, and that they cannot defeat the plaintiff ’ s action by assailing in the cross-action the probate of the will. ' It stands as an adjudication, and, as the time prescribed in which an action may be brought to set it aside has expired, the cross-petition must be dismissed.

II. The claim by defendants for rents of the land in question accruing since the death of the testator cannot be sustained. They claim as joint heirs with the plaintiff, alleging that he has appropriated the rent. But, as under the will he takes the land, of course the defendants are entitled to no part of the rent.

The decree of the district court is affirmed.