Hume v. Franzen

Adams, Ch. J.- i. vendors ers! good!88" equity!101106’ -Both parties claim through one Jolm M. Kirk. The land was entered in Kirk’s name, though in trust for one John B. Yail, who furnished the considera-Uon. Soon after- the entry Kirk undertook to make a transfer of the land to Yail. As to whether it had the effect to transfer the legal title is one of the disputed points, but it is not material to determine the question. Yail was certainly the equitable owner from the outset, and the plaintiff, by different conveyances, became the owner of his equitable interest, and was such at the time of the commencement of this action, and before decree became the holder of the legal title, unless the title undei which the defendant Franzen claims shall be held to be good. [27] "We have, then, simply to consider the question as to the validity of Franzen’s title. The facts respecting it are these: One H. E. Long, discovering several years after the land was entered that Kirk appeared on record to be still the owner, made an application to him for a quitclaim deed, upon the theory that he, Long, had in some way become the owner, and needed a quitclaim to perfect his title. The application embraced this and other land similarly situated, amounting in all to 520 acres, and worth about $5 an acre. The result of the application was that Kirk executed a deed of the 520 acres to Long for $60. Long then sold and conveyed it to the defendant "Wetmore, and he sold and conveyed to the defendant Franzen. Long was of course not a bona fide purchaser. He knew that Kirk did not understand that he was the owner at the time he made the deed to him, (Long.) but, on the other hand, understood that he was not the owner, but had parted with his title to some one. As to Wetmore, the grantee of Long, we have to say that we think that he also was not a bona fide purchaser. The evidence shows that he saw the deed from Kirk to Long, and that deed, showed the consideration for the 520 acres to be $60. He had good reason to suppose that the deed from Kirk was not made with the understanding that he was the owner. We must assume that any person of ordinary intelligence and honesty, if he were about to purchase from Long, would have inquired if $60 was really what he paid for the land described in the deed, and, if so, what the explanation of such a transaction was. He was then put upon inquiry, and must be charged with knowledge of all that a proper inquiry could be presumed to have led to, and that would have been just-what Long knew; and that is, that Kirk did , not understand that he was the owner, but had parted with the title to some one. [28] 2. EOKMEll adjudication: appearance íotonenut a party. [27] As to Franzen, the present claimant, the burden is on him to show that he is an innocent purchaser for value; and upon that point there does not appear to be any evidence [28] whatever. It is claimed, however, by him, that the plaintiff is barred by an adjudication in an action in which Wetmore was plaintiff, and one Alexander ITume was A defendant. But the fact is that the plaintiff, r ? E. Hume, was the owner at that time, and was n0£ ina(je a party to the action. It is claimed, to be sure, that one Berry, as an attorney, appeared for him. Berry testified that he appeared for him, but he did so upon the supposition that he was a party, and, upon discovering that he was not, Berry withdrew his appearance. We may add that we think that the evidence fails to show that Berry was authorized to appear, and, if not authorized, his appearance after withdrawal should go for nothing. The decree of the district court appears to us to be correct. Affirmed. Peb Cubiam. We have found, upon the abstract in this case, the name of Charles 8. Fogg, as attorney for the appellant. He has not made any actual appearance in the case in this court, and we have omitted to insert his name in the opinion because he says that he does not wish to be considered as appearing in the case as responsible for the appeal. We take this occasion also to say, in relation to a certain criticism made upon Mr. Fogg in the case of Gresham v. Chantry, 69 Iowa, 728, that he disclaims all intention of perpetrating a wrong in the case; and he places his disclaimer upon the ground that he was misled in regard to the facts. We are unwilling to do any member of the bar injustice, and are glad to place upon record any statement which may tend to exonerate Mr. Fogg, who is, so far as we know, a worthy member of the profession. In view of facts which have recently come to our knowledge in respect to that case, we have to say that we do not think that he was responsible for the wrong which was attempted.