Cowin v. Toole

Miller, J.— I. Numerous grounds were stated in defendants’ demurrer. Only those, however, presented in argument will be considered. l. pleading: fraud. The appellees insist that the averments of fraud in the petition are insufficient; that the statement of facts must be such that the court will be enabled to determine why the sales are fraudulent. The petition distinctly avers that a large amount of assets belonging to the estate of the testator came into the hands of defendant Toole, executor; that the same has not been by him in any manner accounted for; that, for the purpose of cheating and defrauding the estate and the plaintiff, and for the purpose of placing the [516] title to the real estate beyond the reach of plaintiff and other heirs, the defendant falsely and fraudulently concealed the fact that he thus held this large amount of personal assets, and made false and fraudulent returns to the county court, from time to time, and thereby frau.dulently procured orders for the sale of the real property; and other similar averments of fraud are made. All these averments which, in our opinion, show a series of transactions steeped in the deepest fraud, are confessed by the demurrer, and are sufficient. In charging fraud, it is not necessary or proper for the pleader to set out all the mmute facts tending to establish it. The ultimate facts and not the evidence should be pleaded. . Singleton v. Scott, 11 Iowa, 589; Bev., § 2945. If the statement of facts is not sufficiently specific, it may be assailed by motion, but is not demurrable.for this defect. Bev., § 2948. 2. jubisdiotion: direct attack ofjuceedinga. II. The demurrer also raises the question of the jurisdiction of the district court to grant the relief prayed, and it is insisted in argument, that that court, under , . ° , . , the showing made by the plamtifts, has no right to review and set aside the rulings of the probate court, and in support of this position we are cited to the case of Pursley v. Hayes, 22 Iowa, 33, and cases there cited. In that case it was held that, “ if the jurisdiction of inferior tribunals has once attached, every intendment will, be made in favor of the validity of all its subsequent proceedings, and mere wregula/rities a/nd defeats will not avail in a collateral proceeding.” In the case before, us, however, the' proceedings of the county court are dwectly' attached, not for mere irregularities or defects, but for fraud, for which even the judgments of superior courts may be attacked and set aside in a direct proceeding. See Dunlop v. Cody, and Whetstone v. Whetstone, ante, and cases cited. The relief sought in this case can only be granted in a court of equity, and the district court has exclusive juris [517] diction of equity causes, properly so called, in original proceedings. The demurrer on this ground was improperly sustained. See § 4, art. 5, New Const.; Rey. of 1860, § 2663; Sterrett v. Robinson, 17 Iowa, 61; Richardson v. Barrick, 16 id. 407, and cases cited. 3. statute of sales: fraud. III. The remaining question presented is that of the statute of limitations. Appellee relies on section' 2388 oí ^Ie Revision- of 1860, and on Campbell v. Long, 20 Iowa, 382, The statute referred to is as follows: “Section 2388. No action for the recovery of any real estate sold by an executor can be sustained by any person claiming under the deceased, unless brought within five years next after sale.” In our opinion the case does. not come within this section, but is to be governed, in respect to the time within which the plaintiff may sue, by the third subdivision of section 2740 of the Revision, which is as follows: “Section 2740. The following actions may be brought within the times herein limited respectively after' their causes accrue, and not afterward, etc. 3. Those founded on 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, within five years.” The plaintiff seeks relief from certain orders and proceedings of the probate court procured by the defendant by fraud, and for relief from the alleged fraudulent acts and doings of the defendant under such orders and proceedings. This cause of action was heretofore and still is solely cognizable in a court of chancery. The statute therefore commences to run from the time of the discovery of the fraud. It has been held by this court that when the legal title to real property has been obtained by fraud, an action to recover, [518] by tbe actual or equitable owner, may be commenced at any time within five years after the discovery of the fraud. McLenan v. Sullivan, 13 Iowa, 521. In that case, which was a suit in equity for the recovery of - the land, it was objected that the plaintiff’s right to recover was barred by the statute of limitations, the action not having been brought within ten years next after the cause of action arose, but it was held that, the action being brought by the equitable owner against the holder of the legal title who obtained it by fraud, the plaintiff had five years from the discovery of the fraud in which to sue. The ease of Campbell v. Long, 20 Iowa, 382, cited by appellee’s counsel, is not in conflict with McLenan v. Sullivan, and has no bearing whatever upon the question under consideration. In that case no allegations of fraud were made. The action was for the recovery of real property of which the plaintiff claimed to be the owner as heir of George "W". Fitch, who, it was alleged, purchased the same at sheriff’s sale. The plaintiff was a minor when her father died. The action was brought more than one year after she attained her majority, and it was held that the extension of time, as to minors, under section 2747 of the Revision, in cases in which the cause of action shall have accrued more than ten years before majority, expires with, the first year of majority; and that ignorcmce of a right does not prevent the operation of the statute of limitations. In the ease before us the allegations of the petition show that plaintiff is the equitable owner of the property in dispute; that she has been deprived of the legal title by the fraud of defendant Toole; that his grantees had knowledge of the fraud, and that such fraud came to her knowledge within five years prior to the commencement of the action. Her right to prosecute the suit is, therefore, not barred, and the demurrer should have been overruled. Reversed.