
    Sarah Everett and Thomas Everett v. Jacob Croskrey, Appellant.
    Attorneys’ Fees as Costs: partition. Where the issue tried was whether the defendant owned one-sixth or one-half of the land in controversy, and the land was divided by the parties themselves, after a decree giving them one-sixth, plaintiff’s attorneys were not entitled to have their fees taxed as costs, as is authorized in an action for partition.
    Kinne, C. J., took no part.
    
      Appeal from Tama District Court. — Hon. George W. Burnham, Judge.
    Thursday, January 28, 1897.
    After decree in an action for partition was affirmed by the supreme court, and the parties themselves had divided the land, on motion of plaintiffs, the district court allowed plaintiff’s attorney fees for services rendered in both courts, apportioning them among plaintiffs and defendant according to their respective interests, and required defendant to pay one-sixth thereof. From this order he appeals.
    
    Reversed.
    
      W. H. Stivers for appellant.
    
      Struble & Stiger for appellees.
   Ladd, J.

The issue tried was whether the defendant owned one-sixth of the land, as stated in the petition, or one-half thereof, as alleged in the answer. In other words, the title to one-third of the land was in dispute, and was adjudged to be in the plaintiffs. 92 Iowa, 333 (60 N. W. Rep. 732). Thereafter the parties, by the execution of deeds, divided the lands, giving to each the portion awarded by the decree. The title, only, was contested, and no partition made by the court. In McClain v. McClain, 52 Iowa, 272 (3 N. W. Rep. 60), it is said: “While in form this is an action for partition, yet it is essentially an action to determine the title, which was in dispute. We do not think, in such a case, the fees of plaintiff’s attorneys should be taxed as part of the costs.” See also, Duncan v. Duncan, 63 Iowa, 150 (18 N. W. Rep. 858). The statutes contemplate the payment of plaintiff’s attorneys for services essential to the accomplishment of actual partition of the real estate, by all parties, in proportion to their interests. Attorney’s -fees, however, for services rendered in the determination of issues wherein the title to, or some interest in the property is in controversy, should not be allowed or taxed as part of the costs. — Reversed.

Kinne, C. J., took no part.  