Pfiffner v. Krapfel

Cole, J. i. Erato : in oeptanceSofa° ment. ' We first turn oxxr attention to the case involving the question of the right of Anna M. Pfiffner to redeem -from the tax sale and deed. If she has this right, notwithstanding the judgment-in favor of Theviot on his cross-petition, then [32] it follows, as a matter of course, that the plaintiff Krapfel cannot recover the real property in his action brought therefor; and the question made by her petition,to modify the judgment so as to allow her to redeem, becomes immaterial, since she would have that right without any modification. The right to redeem is claimed upon two bases of fact: First, that there was a fraudulent combination between Krapfel and Theviot to deprive plaintiffs of their homestead ; that the latter procured her acceptance of service upon his cross-petition in ignorance of its contents, by false representations, to the effect that he was thereby aiding her to defeat Krapfel’s mortgage, in order to save the homestead for her. Second, that the cross-petition of Theviot contains no allegation in reference to Anna M. Pfiffner’s right to redeem the property, nor any averment calculated to apprise her that such right was to be called in question; that the prayer of the cross-petition did not ask that such right of redemption be barred, nor does the judgment, in terms, or otherwise, profess or purport to bar such right. The appellants also claim, as a matter of law, that, since the right to redeem property sold for taxes is expressly given by statute to a married woman, and such right in this case had become fixed and vested, the court could not, any more than the legislature, take away or cut off that right; in other words, the court had no power or jurisdiction to do so. As to the first basis of fact as claimed by appellants, it may be remarked that while there is but little, if any thing, in the direct testimony of the witnesses tending to show actual fraud on the part of Krapfel or Theviot, yet there are facts and circumstances, disclosed in the entire record of the case, tending to show a combination between them, effectuating a surprise and fraud upon Anna M. Pfiffner. Some of these may be mentioned : Mrs. Pfiffner [33] is shown to be an uneducated woman, of German birth, and having but very limited knowledge of our language; not able to fully understand ordinary conversation. She acceptéd service of the cross petition at the instance of Theviot’s attorney, and without any just apprehension of its meaning, purport, purpose or effect; that she did so under the belief that Theviot was her friend, and was seeking by the proceeding to save and secure her homestead for her. Krapfel, who had the only mortgage that was a lien on the premises, and who had brought suit to foreclose it, made no defense to the cross-petition by Theviot to foreclose his mortgage and make it prior to Krapfel’s, when in law it was no lien at all. On the very day the default was entered against all the parties to Theviot’s cross petition, Krapfel buys Theviot’s interest and takes a quit-claim deed therefor; and two weeks thereafter a decree or judgment was rendered in favor of Theviot, forever barring Krapfel’s right or interest in the premises. s. jotomeht: sale. ' These facts taken in connection with the following, to wit : that the cross petition contains no mention of, or reference whatever to, the homestead rights, or the right of redemption belonging to Mrs. Pfiffner; that it makes no allegation in relation to any interest of hers in the property, and asks no relief as against any claim or interest of hers; that the judgment itself does not refer to any interest or claim of hers, and only bars “ any claim, right or interest” which “ accrued before or up to the date of the treasurer’s deed,” while the deed itself expressly reserves and is made subject to “all the rights of redemption provided by law;” all these when taken together, we hold, do show a combination and purpose to cut off the rights pf Mrs. Pfiffner under color of legal proceedings, without advising her of the intent and effect thereof. In other words, the [34] cross-petition, prayer and decree were but a masked battery set and used to capture Mrs. Pfiffner’s homestead rights. Our system of pleading is essentially a fact system, intended to require the parties in judicial proceedings to state the facts of their claim and advise the opposite parties of the true nature and object of the suit. It is against the spirit and plain intent of our Code to allow parties to claim as fruits, of their litigation, that which was not by the fair and obvious import of the pleadings putin issue and litigated between them. This, we have already substantially held in Moomey v. Maas (22 Iowa 380), where a widow who had not joined in the mortgage was held not barred from asserting.her dower in certain real estate, by reason of the mortgage foreclosure decree and sale of the same property, although she was a party defendant thereto and duly served with notice. So in Standish v. Dow et al. (21 Iowa, 363), it was held that a senior incumbrance by trust deed was not barred by the foreclosure decree of a junior mortgage, although the cestui que trust was a party, and duly served with notice of such foreclosure proceedings. t tax sale : homestead: redemption, The property in controversy being the homestead, the wife of the owner has such an interest in it, under our statute, as entitles her to redeem the same . ' . trom tax sale. Adams v. Beale et ux., 19 Iowa, 61. And this right of redemption continues till one year after she shall become discovert. Rev. § 779. This effectually disposes of all three of the cases, and substantially, in result, the same as the report of the referee. The judgments will therefore be reversed, and remanded with directions to the District Court to render judgment in accordance with and upon the report of the referee. Reversed.