O'Neill v. Wilcox

Waterman, J.- 1 Wilcox died before trial, and no substitution was made. In this state of the record the issue between plaintiff and Robert was tried. This was proper, for one who has an equitable title only may maintain an action to quiet it. Code, section 4223; Rankin v. Miller, 43 Iowa, 11. 2 3 II. The evidence offered on behalf of plaintiff tended to show that he purchased the lots in question through one J. W. Wilson, who it is claimed .was an agent of Wilcox. Wilson was introduced as a witness, and testified-, to his authority, and to the fact that his compensation was 10 per cent, on the amount'of the sales. Objection was made to this testimony, under section 4604 of the Code, on the ground that Wilson, being interested in the result of the action, could not testify to any personal transaction with Wilcox, deceased. It does not appear that he has any interest in the result of this action. So far as is disclosed, he may have been paid his commission at the time of the sale, and, if so, any claim to recover it back would be barred'by limitation. Aside from this statute, Wilson’s testimony was competent to establish his agency. O’Leary v. Insurance Co., 100 Iowa, 390. We think it sufficient to say, without detailing the facts given in evi [17] dence, that- the trial court was justified in finding that Wilson had authority as agent to make the sale to plaintiff. 4 III. As one source of Wilson’s authority, plaintiff pleaded that the sale to him was authorized by one Augusta Wilcox, who held a power of attorney from C. S. Wilcox and wife which empowered her to make the sale. On this branch of the case the record of this instrument was offered in evidence. Objection was made that it was not the best evidence; that the original should have been produced, or a showing made that it was not obtainable by plaintiff. Whatever merit there may be in the objection is rendered nugatory by the fact that the other evidence of Wilson’s agency was sufficient to establish such relation. 5 IV. Plaintiff went into possession of the property when he purchased, and was holding such possession through a tenant at the time of the subsequent sale to Pohert. This was sufficient notice to the latter of plaintiff’s rights. Possession by a tenant is constructive notice of the landlord’s title. Dickey v. Lyon, 19 Iowa, 544; Nelson v. Wade, 21 Iowa, 49; Hannan v. Seidentopf, 113 Iowa, 659. In addition 'to this, it may be stated that Pohert took title through a quitclaim deed, and is therefore charged with notice of plaintiff’s equities. See Hannan v. Seidentopf, supra, with cases therein cited. 6 V. The sale to plaintiff was made in the year 1885. No demand for a deed was made by him 'until tins action was brought, in 1893. Some claim is made that he forfeited his rights because of lachos. No reasons are given in support of this contention that seem to us of weight. Counsel, in discussing this branch of the case, assume that the land was unoccupied.’during this period,. Without saying that this fact would aid appellant, it appears, as we have already said, that plaintiff was in possession up to the time of Pohert’s purchase. [18] 7 VI. The statute of limitations is also invoked as a defense. Plaintiff was not disturbed in his rights until the sale to Robert, which was made on September 11, 1891. Within two years thereafter ho began this action. It is manifest from these facts that there is no merit in this defense. — Aeeirmed.