Iowa Railroad Land Co. v. Fehring

Ladd, J.— [5] i. Limitation Op ACTIONS* when statute to run. [4] According to the petition the plaintiff acquired title to the forty acres through a conveyance executed [5] to it December 18, 1884, by the Cedar Rapids & Missouri Railroad Company, to which the government ^ certified the land June 14, 1901, by virtue of an act ox Congress approved May 15, 1856, and an amendment thereto approved June 2, 1864. Action for possession was begun in September, 1902, against Mary Fehring, to whom James Callanan and J. 0. Savery had executed a quitclaim deed in 1889. To her grantors the American Emigrant Company had conveyed in 1815, and to. it Greene county twelve years previous. Meyer is merely the tenant of Fehring, who has been in the open, notorious, and exclusive possession of the land since 1889. This was with color of title. Tremaine v. Weatherby, 58 Iowa, 615. As will be observed, the legal title did hot pass from the United States until the execution of the certificate to the railroad company in 1901, and it is elementary that the statute of limitations does not run against the' government. Young v. Charnquist, 114 Iowa, 116; Wilber v. Ry. Co., 116 Iowa, 65. Possibly the company may have earned the land prior to that time; and if its title was perfect, and nothing remained for it to do save receive the certificate of title from the government, it is not perceived why the statute of limitations should not begin to run when entitled to such certificate. See Cady v. Eighmey, 54 Iowa, 615; Steele v. Boley, 6 Utah, 308 (22 Pac. Rep. 311); Carroll v. Patrick, 23 Neb. 834 (37 N. W. Rep. 671) ; Nichols v. Council, 51 Ark. 26 (9 S. W. Rep. 305, 14 Am. St. Rep. 20). In such a case the government retains but the naked-legal title, while the beneficiary of the grant is the real owner. But nothing of the kind is suggested in the division of the answer setting up the plea of adverse possession, and in the absence thereof the ownership must be presumed to have been acquired with the execution of the certificate. The averment of the petition that the plaintiff procured the title in 1901 was in no way obviated, and as prior thereto it was in the government, the statute of limitations could not [6] have begun to run until then, and the demurrer to this division of the answer was rightly sustained. 8. Estoppel:represention of agent. II. The defendant also pleaded by way of estoppel that in negotiating for an adjoining forty acres of land'of plaintiff through its agent, one Lawrence, she inquired who owned the forty acres in controversy, and was informed by him that it did not belong to the plaintiff, but was swamp land. In reliance on such information she purchased it of Callanan and Sav-ery at a cost of $160. The, only averment with reference to the agent’s authority contained in the answer is that he “ was agent for tire sale of their lands in Greene county, Iowa.” From the mere agency to sell power to waive claim of title is not to be inferred, and the most that he was authorized to say was that he had not been directed to sell. Besides, there is no allegation that the agent was advised of the purpose of the inquiry, or that plaintiff was intending or likely to rely upon his response, or that this was made in bad faith. In tírese circumstances the reply cannot be made the basis of a plea in estoppel. Kirchman v. Standard Coal Co., 112 Iowa, 668; Near v. Green, 113 Iowa, 647. , 3. Adverse possession: toppei. III. In the fifth division, added by way of amendment to the petition, the defendant averred that proceedings were instituted before the Land Department of the government in 1884 to determine whether the land in controversy was of such character as to pass under the swamp-land grant, and whether it was within the railroad grant; that in 1886 it was held to be within the latter grant, and not to be “ swampy; ” that the decision was procured by fraud, and that she had applied to the Land Department to have it set aside; that, in any event, the plaintiff allowed the proceedings to remain undisposed of and without attention on its part or on the part of the government from that time until June 14, 1901; that from 1889 the defendant had been in the actual possession of said land, claiming ownership thereof, improving [7] the same, and paying taxes thereon, without knowledge or notice of said proceedings, and that all of them were known to the plaintiff. It is averred that “ by reason of said negligence, slothfulness, and laches ” the plaintiff is now estopped from claiming said land. We think this presents a good defense. One person ought not to take advantage of' another’s ignorance in the manner alleged. According to the answer, for more than ten years the plaintiff has known that defendant was in possession and asserting title to the land; that during that time she had been improving the same, and so acting in utter ignorance of its .claim, or of the proceedings instituted by it to procure title; and yet it had made no objection thereto, and had put forth no effort whatever to perfect its claim to the land. The case in its facts is stronger than Bullis v. Noble, 36 Iowa, 618, in that the defendant was conscious of its claim; but possibly weaker in that it had no legal title to assert. But, if the allegations are to be accepted as true, as they must be on demurrer, its omission to acquire title was due to its own .inattention to and neglect of its affairs. If nothing had been done in the intervening twelve years, its claim of title was as complete in 1889 as immediately before the certificate issued. In other words, it must have been the real owner, though the naked title continued in the government. We see no reason why the doctrine of estoppel should not apply in such a situation as effectually as where the legal title had passed. If the plaintiff, as the real owner, permitted the improvements under claim of right without objection on its part, though having full information of the claim and what was being done, it ought not now to be permitted to take a position inconsistent to its former attitude to the defendant’s prejudice. True, the defendant charged that the-decision of the Land Department was procured by fraud, but this does not affect the applicability of the doctrine of estoppel, for, if the circumstances were such as to prohibit the assertion of a [8] valid title, one ought not in a like situation to be allowed to take advantage of a claim based on fraud. In view of our conclusion, we need not inquire whether the plea of laches was sufficient. But see Young v. Hanson, 95 Iowa, 717; Bourne v. Ragan, 96 Iowa, 566; Young v. Snell, 115 Iowa, 32; Young v. Charnquist, 114 Iowa, 116. — Reversed.