Dillenbach v. Kerr
Dillenbach v. Kerr
Opinion of the Court
The plaintiff, began this action in the district court for Adams county to establish and quiet title in certain real estate in that county and to redeem from alleged liens. The defendant Thomas Kerr, by his guardian William M. Bowman, alleged title in himself, and denied that plaintiff has any right or .interest in the real estate, and asked to have Ms title quieted.
It is conceded that Daniel Dillenbach, the owner of a certain tract of land in Adams county, conveyed it, his wife joining in the deed, to his son Daniel S. Dillenbach, subject to two mortgages. In the deed the grantee agreed to board and clothe the grantors during their respective lives, and agreed that they should have the use and control of the dwelling-house and other improvements on the land. Afterwards the land was sold upon foreclosure of the two mortgages, and was purchased by the mortgagees William Kerr and one Clark, the owner of one of the foreclosed mortgages. The sale upon foreclosure was not confirmed, and Daniel S. Dillenbach, the holder of the legal title, conveyed the land to the said William Kerr. The plaintiff claims the land under a subsequent deed from Daniel S. Dillenbach. William Kerr conveyed it to his son, the defendant Thomas Kerr. The trial court found “against the
• The plaintiff makes no contention in the brief that the decree is wrong as against her, and it is not necessary to inquire whether plaintiff has regularly appealed therefrom. The plaintiff contends that the finding and decree requiring defendant to pay plaintiff $2,950 as a condition to have his title quieted is supported by the pleadings and evidence. The contention seems to be that William Kerr by his deed took only the interest of Daniel S. Dillenbach, and that the interest of Daniel Dillenbach and his wife which was reserved in their deed to Daniel S. Dillenbach was never acquired by William Kerr, and was therefore not conveyed in his deed to the defendant Thomas Kerr! The plaintiff has asked leave to amend the petition in this court so as to allege that Daniel Dillenbach and his wife joined in the deed from Daniel S. Dillenbach to William Kerr, and concedes that the evidence shows that to be a fact. It is, however, argued that the land was then, more than 15 years ago, worth more than the amount William Kerr paid therefor, and that no consideration therefor was paid for the right and interest of Daniel Dillenbach and his wife. It is admitted that William Kerr took possession of the land upon receiving his deed, and that Daniel S. Dillenbach and his wife paid him rent therefor for several years, and “at the expiration of such time, they removed from the land, upon the demand of the Kerrs.” As the pleadings did not allege that Daniel Dillenbach and wife joined in the deed to William Kérr, the trial court apparently did not consider that fact. There was not a failure of consid
The judgment of the district court is modified so as to quiet the title of defendant absolutely, and, as modified, is affirmed. Each party will pay his own costs in this court.
Affirmed as modified.
Reference
- Full Case Name
- Lucia Dillenbach v. Thomas Kerr
- Status
- Published