Beck, J.
i. i-katjd : partition • equity. ' cannot be doubted that the decree of partition, upon the report of the referees as amended by the court, confirming the interests of the different parties as therein declared, failed to give plaintiff, Sarah, her full interest and right in the land as settled by the interlocutory order and admitted by the petition of Tucker. She was, as is shown by the proceedings, originally entitled to dower in all the lands, being a life estate in one-third in value of the same. She subsequently acquired the interest of two of the heirs, which was the fee simple title to the undivided two-thirds of the land. Her life estate in this undivided two-tliirds merged in the fee, held by her. She was, therefore, entitled to have set apart to her two-thirds of the land in fee simple, and a life estate, as dower, in one-third in value of the remaining one-third. But by the final decree of partition she receives 175 acres in fee, and 134 acres for life. Tucker, who was entitled to receive in the partition one-third, less forty acres, subject to the dower estate, is awarded by the decree 50 acres in fee exempt from the dower estate, and 134 acres subject to the life estate. Sarah should have received 266f acres in fee and a dower estate in 133-J-, and Tucker should have been awarded 93-tjr acres subject to Sarah’s life estate in one-third of it. The decree did not, therefore, partition the lands according to the true interests and rights of the parties as settled by the pleadings and the </ i o interlocutory order. It deprives plaintiff of valuable property. The petition alleges that this resulted from the fraud of Tucker. It cannot be doubted that, if plaintiff establish her allegations, equity will award relief. The [600]*600demurrer admits the truth of all matters properly charged to the petition. It should have been overruled.
pleading" — : practice.' The defendant cannot plead the decree., if fraudulent, as an adjudication which will cut off plaintiff’s rights. That'adju^cation, as charged in the petition, was procured by the fraud of defendant, and is not binding on plaintiff; Equity always stands ready to defeat fraudulent purposes, and to restore claimants to rights of which they have been deprived through fraud. The time for appeal, in this particular case, having passed, and plaintiff being without'other remedy, chancery will afford relief. Hoskins v. Hollenback et al. 14 Iowa, 314; Patridge v. Harrow & Harrow, 27 Iowa, 97; Brown v. The Troy Portable Mill Co., 31 Iowa, 460.
■ II. Plaintiffs insist that the intervenor cannot be heard in this proceeding, and that his petition was correctly dismissed.
3, EC£DiTABm JTJBXSDICtion: action, ■ The relief claimed by plaintiff cannot be granted without setting aside the decree of partition. If that be done, the court must determine the titles of the respective . ITT* TT ..r parties to the land. Any such determination could not affect Perkins’ claim, unless he be a party to the action, Should the cause be heard without his appearance, he could bring his action against the plaintiff for the land claimed by him. If he be made a party, his rights may be determined in' this action.' Equity will not send a party from its bar to begin a new suit, when it has jurisdiction of the persons and subject matter concerned, and can afford relief.
• Perkins’ interests are in conflict with plaintiff’s; he has an interest, or claims to have, in the matter in litigation, and is, therefore, entitled to intervene, under Code;. § 2683. The District Court, therefore, erroneously dismissed his petition.
■■ The decree and order appealed from by plaintiffs and the intervenor are reversed, and this cause will be remanded for further proceedings not inconsistent with this opinion,
Eeversed.
Free access — add to your briefcase to read the full text and ask questions with AI