Harter v. Twohig

This was a bill by James Twohig against George D. Harter, M. D. Harter, Isaac Harter, Henry W. Harter, and Louise Odean to set aside a decree foreclosing a trust deed, and to annul a sheriff's deed made pursuant thereto, and to be allowed to redeem the land. The circuit court rendered a decree in favor of complainant, but required payment to defendants of the indebtedness secured by the trust deed with interest, and all taxes paid with interest. Both parties appealed.

February 27, 1858, Eugene L. Wilbur entered the W. 1/2 of the N. E. 1/4 of section 33, township 29, range 9 E., situated in Dakota county, in the then territory of Nebraska, paying therefor the sum of $1.25 per acre. On the same day Wilbur executed and delivered a trust deed to Augustus Kountze, as trustee, conveying said land to secure to Isaac Harter, the father of appellants, the payment of a promissory note for $140, bearing that date, and due one year thereafter, with interest at the rate of 4 per cent. per month after maturity. No part of the interest or principal due upon this note was ever paid to Isaac Harter or to p pellants. On March 2, 1860, Wilbur and wife, by a quitclaim deed, conveyed the 80 acres to William F. Lockwood, and on February 6, 1861, Lockwood and his wife, Mary A., by warranty deed, conveyed the same to James W. Virtue for a consideration of $40 in money and $25 in property, who, on February 3, 1863, by warranty deed, conveyed an undivided one-half interest to Mary A. Lockwood. Virtue was the witness to the trust deed to Kountze, and it was acknowledged before him as notary public. The record further shows that Isaac Harter, now deceased, paid the taxes on the property from 1862, to the time of his death, which occurred February 27, 1876; that Isaac Harter had placed the trust deed and the notes secured thereby in the hands of his attorney to foreclose the same, and that a petition for such foreclosure had been verified February 21, 1876, and was filed February 28, 1876, in the district court of Dakota county, Neb.; that the defendants in the suit were William F. Lockwood, Mary A. Lockwood, his wife, and Augustus Kountze, the trustee; that they were brought in by publication, and, constructive service on them having been thus duly obtained, a decree foreclosing the trust deed was entered June 5, 1876, at the June term, 1876, of the court, in favor of Isaac Harter and against William F. Lockwood, Mary A. Lockwood, and Augustus Kountze, and such proceedings were thereupon had that the property in controversy was sold by the sheriff under the decree to Isaac Harter, August 12, 1876. It further appeared that the amount due on the promissory note June 5, 1876, was $1,248, and that the property was appraised at $880 before the sheriff's sale. May 10, 1877, the sale having theretofore been approved by the court, a deed to Isaac Harter was duly executed by the sheriff of Dakota county, Neb., for the 80 acres in question, and by him delivered to the attorney of Isaac Harter, who delivered the same to appellants, and they, not realizing that there was any irregularity connected with the proceedings, and believing they had a good and sufficient title to the property, filed the same on June 10, 1877, for record with the county clerk of Dakota county, and thereafter, and until the commencement of this cause, held themselves to be the owners thereof, paid the taxes thereon, offered the same for sale, had correspondence with divers parties concerning the land, and exercised all the rights of property and dominion over the same which were exercised by any person from June 1, 1877, to December 21, 1888, when this action was commenced, the acts of ownership being such that the tract was generally known in the community where it was located as the 'Harter land.' The land remained of comparatively little value up to the spring of 1887, when a railroad bridge was built across the Missouri river to Sioux City and to South Sioux City, where a town was laid out, and it then rose rapidly in value, until, at the time of the commencement of this action, it was worth $100 to $150, and, pending this suit, $200, per acre.

In the summer of 1888, James P. Twohig was the clerk of the district court of Dakota county, Neb., when an affidavit was filed therein by Isaac Harter, one of the appellants, for the purpose of perfecting the title to another piece of real estate in that county, belonging to appellants, and which they were about to sell, which affidavit showed that Isaac Harter, the father of affiant, died February 27, 1876. Thereafter James P. Twohig obtained a quitclaim deed from James W. Virtue of the 80 acres for a consideration of $350, bearing date September 3, 1888, and filed for record September 22, 1888. Twohig then wrote appellant Isaac Harter a letter, stating that he had title to the land, and demanding a settlement, which was the first information that appellants had of any claim whatever against their title. On December 21, 1888, Twohig filed his petition against appellants in the district court of Dakota county, Neb., which was subsequently duly removed into the circuit court of the United States for the district of Nebraska, praying judgment that the decree in favor of Isaac Harter, deceased, of June 5, 1876, and the sheriff's deed based thereon, might be set aside and declared void, and Twohig be allowed to redeem the undivided half of the real estate from the lien of the trust deed to Kountze on paying to defendants the amount legally and equitably due them. While the suit was pending, and on or about January 28, 1889, Twohig obtained a quitclaim deed from Mary A. Lockwood and William F. Lockwood for an undivided one-half of the land for a consideration of $50, and on November 20, 1890, filed his supplemental petition in the circuit court, praying the same relief as to the whole of the land.

It appeared that, in 1866, William F. Lockwood and his wife, Mary A., left Dakota county, Neb., and never returned to that state; and that, two years before, James W. Virtue left that county, and went to Washington Territory, where he has since resided. Neither Virtue nor Mr. or Mrs. Lockwood, from 1864, ever exercised any rights of ownership whatever over the land in controversy, which land had never been cultivated or fenced, and up to the year 1887 was wild land.

Appellants answered, and set up the defenses of the statute of limitations, of abandonment, of title by adverse possession, and of laches. On a reference certain findings of fact were made, which have been substantially anticipated in the foregoing statement. Thereupon it was held by the circuit court that the decree which ordered a sale of the premises in the suit of Isaac Harter, Sr., was absolutely void; that neither complainant nor defendants were ever in the actual possession of the land, and the statute of limitations did not apply; that Virtue was not a party defendant to the foreclosure case, and, in any event, his grantee ought to be permitted to redeem; that defendants were entitled to the return of taxes paid, with interest, and payment of the indebtedness secured by the trust deed to Kountze, with interest; and a final decree was entered allowing redemption on payment of the amount found, from which decree both parties appealed to this court.

J. H. Swan and Henry W. Harter, for appellants.

Wm. E. Gantt, for appellee.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.