Yokum v. Thomas

15 Iowa 67, 1863 Iowa Sup. LEXIS 58

• Court: Supreme Court of Iowa
• Decided: June 12, 1863
• Status: Published

Opinion

Baldwin, Ch. J.

It is true as claimed by complainant that when Maria De Kraft obtained the patent from the "United States, the legal title was vested in her, and upon this title she could have brought her action of right, and, notwithstanding the paramount equities of- the plaintiff, could have obtained a judgment- evicting him from the premises.

The covenants in the deed of defendant were broken, but the question then arises whether he could remove such superior title by purchase, or file this bill in equity to have the same set aside, without first, having called upon the warrantor to do so ? We are inclined to answer this proposition negatively. There is no excuse offered for pot giving the defendant the opportunity .to- protect himself against the costs incurred by the complainant in the proceeding against Mrs. De Kraft. It is found by the Court that this subsequent title was obtained from defendant by fraud: if so, it was not by any fault of his, but if it was, he should at least have an opportunity to either buy in this paramount title, or bring proceedings himself to set the same aside. He could perhaps remove this cloud upon more favorable terms. than any one else, and until he was notified of this outstanding- title, and had been requested to have it removed, the complainant could not make him responsible for any sum expended in accomplishing this purpose.

Reversed.