
    Judd v. Mosely.
    1. Jurisdiction ¡ original notice : non-resident minors. Anon-resident minor may be served by publication tbe same, and with like effect, as a non-resident adult; and when thus served tbe court is authorized to appoint a guardian, ad litem, to- defend for him on the failure of his regularly appointed guardian to- appear.
    2.-demurrer. The objection of want of jurisdiction Can be taken advantage of by demurrer, only when it is apparent from the ijaee of the petition.
    3. Parties! contract: administrator. In a proceeding to enforce against an estate the specific performance of a contract to convey real estate executed by tbe decedent, the administrator is a proper but not a necessary party, and the proceeding may be against the heirs alone.
    4. Statute of frauds: trust: tax sale. Where the owner of land sold at tax sale, and the purchaser, verbally agreed that it should not be necessary for the former to redeem in order to save his Iights; that the purchaser should receive the tax deed, and then uitclaims to the owner upon his paying to him the amount he rould have to pay to redeem under the law •; and where, by reason f such representations and agreements, the owner was deterred rom making redemption within the time allowed by law, it was held, that the transaction was in no sense a contract for the sale of an interest in lands within the meaning of the statute of frauds, but created instead an implied trust which equity would enforce against the purchaser.
    
      Appeal from Poweshiek District Court.
    
    Wednesday, January 25.
    The plaintiff, in his original and amended petition, avers that, on the 29th of September, 1860, one John E. Beatty purchased by contract, not in writing, of one Erastus Douglass, certain real estate, describing it, and then paid the consideration in full, and thereby became the owner thereof; that Douglass then agreed to convey said land by deed to said Beatty, but neglected to do so until about the 16th day of September, 1861, at which time a deed was executed and delivered; that about the 1st day of October, 1860, one Frederick Mosely purchased the same land for taxes, at a tax sale then held hy the treasurer of Poweshiek county; that in 1860, and after said tax sale, and after Beatty had become the owner of the land by purchase from Douglass, and while Beatty had the right to and could have redeemed the land from such tax sale, said Beatty offered to so redeem from Mosely, or to purchase of him the tax certificate; that Mosely assured Beatty that it would be all right; that he (Mosely) would procure and obtain a tax title to the land, and convey the same to Beatty; that, with full knowledge of Beatty’s ownership of the land, Mosely agreed to pay all subsequent taxes and procure a tax deed and convey to Beatty, and thereby strengthen his title to the land; and Beatty, on his part, agreed not to redeem from the tax sale; and when Mosely should obtain a tax deed and convey by quitclaim to Beatty, he agreed to pay to said Mosely the sum of money wh'ich should be due and necessary, under the laws of Iowa, to redeem the land from the tax sale and subsequent taxes paid by Mosely; that, in pursuance of such promises and agreements by said Mosely, Beatty was induced to not redeem the land from the tax sale, and permitted Mosely to pay all subsequent taxes accruing on the land, and to perfect his tax title thereto; that, on the 3d day of November, 1865, Mosely died; that the defendants, as the minor heirs of Mosely, on the 30th day of September, 1868, obtained a tax deed upon said tax sale; that the plaintiff, for a valuable consideration, and with reference to the contract and agreements between Beatty and Mosely, purchased of Beatty all his right, title and interest in the land referred to, and received a quitclaim deed from Beatty therefor; that the defendant, Francis E. Mosely, is the guardian of the minor heirs in the State of Illinois; that they have no guardian in this State; that on the 17th day of April, 1869, the plaintiff tendered to said guardian for the use of the minor heirs, the sum of $205, and demanded a quitclaim deed to the land in controversy, which tender was not accepted and the deed refused, and he refused to do any thing to carry out the agreements aforesaid of said Mosely, deceased. The plaintiff brings his action against the heirs of Frederick Mosely for specific performance, alleges full compliance, on the part of Beatty, with the agreement, and brings the money into court.
    ¥e have stated the substance only, of the plaintiff’s cause of action, but sufficient for a proper understanding of tbe questions involved.
    Tbe defendants appeared and demurred to tbe petition; tbe demurrer was sustained, and plaintiff standing on tbe ruling on tbe demurrer, judgment was rendered against bim for costs, from wbicb be appeals.
    
      Emory & Lewis for the appellant.
    
      Martin & Murphy for the appellees.
   Miller, J.

I. The first question raised by tbe demurrer is as to tbe jurisdiction of tbe district court over tbe persons of tbe minor defendants. Tbis is one of tbe actions in wbicb tbe service of notice may be made by publication, as was done in tbis case. Rev., § 2831, sub. 4.

The district court has jurisdiction in actions against minors tbe same as adult defendants, but where a minor is sued his defense must be made by bis regularly appointed guardian, if be has one, and if not, by a guardian appointed by tbe court. Rev., § 2778. . Before any judgment can be rendered against an infant be must be defended by guardian, and tbe court is authorized to appoint a guardian for tbis purpose only after due and legal service of tbe original notice on the infant, in tbe manner (firected in tbe Revision, section 2779.

Tbe statute points out no other or different mode of service by publication, where tbe defendants are minors, than tbe one to be followed in case of adults. No objection is made to tbe service, and w.e have discovered none. Tbe action being one wherein tbe court acquired jurisdiction by service of notice by publication, and tbe service being thus made, it bad jurisdiction over tbe persons of tbe defendants so far as was necessary to grant tbe relief prayed in tbe petition.

Again, it is only when on the face of the petition it appears that the court has not jurisdiction, that the objection can be taken by demurrer. Rev., § 2876. The petition on its face showed that the court had jurisdiction of the subject of the action, and also to bring in the defendants, by service of notice by publication, and thereby obtain jurisdiction of their persons, so far as was necessary to grant the relief prayed. This objection, therefore, could not be reached by demurrer.

II. Another ground of demurrer Is, that the action cannot be maintained against the heirs, but should have been brought against the administrator. The statute (Rev., § 2460) provides that specific performance of a contract to convey real estate which might be enforced against the person agreeing to convey, if living, may be enforced against his executor. And (by § 2461) it is not necessary to make any other than the executor party defendant to such proceeding in the first instance, but the court, in its discretion, may direct other persons to be made parties. And heirs and devisees may, on motion, at any time, be made defendants. Generally, under the statute, the action mazy be brought in the first instance, against the executor, but the statute does not require that it must be against the executor or administrator. But for this statutory provision the action could not be brought against him; he represents only the personal property of the decedent. The real estate descends to the heir, and in the present case it is the heir who refuses to convey. It appears that there is no executor who could be sued in the present instance, and surely the statute did not mean to deprive the party of this remedy unless there should be an executor or administrator in this State, over whom the court could acquire jurisdiction. While the statute makes the executor or administrator a proper party, it does not make him a necessary party, in our opinion.

III. The only remaining ground of the demurrer argued and. relied on is, that the contract pleaded by the plaintiff comes within the statute of frauds. In the case of Bryant v. Hendricks, 5 Iowa, 256, it was held that a verbal agreement between two or more persons having claims on the public lands, that one shall enter the tract on which the claims are located, and the other should pay his proportion toward the entry of the land, was not within the statute of frauds.” It was so held, on the ground that the agreement created an implied trust and that the facts which create the trust may always be proved by parol. In that case the agreement was that one of the claimants proposed to furnish his share of the money in advance to enter the land; that the defendant said he should enter the land by means of land warrants, but that when he had done so, and the quantity and description of plaintiff’s part was ascertained, he would convey the same to plaintiff. The petition further stated that it was agreed that the parties should attend at some convenient time and survey the land; that defendant, though requested, refused to attend; that plaintiff caused a survey to be made; that he tendered the money for his portion of the entry to defendant, and demanded a conveyance, which was refused. The statute of frauds was pleaded in that case, but it was held that a trust lay at the base of the contract; that it was not a contract to sell an interest in lands. So, in the case before us, the contract set up in the petition is in no sense a contract for the sale of an interest in lands. Before the tax purchase had ripened into a title the plaintiff’s grantor offered to redeem from the purchaser, or to purchase the tax certificate, but he said No, I will pay all subsequent taxes, and when my purchase ripens into a title, and I receive the treasurer’s deed, then I will convey the land to you by quitclaim, you paying such sum of money as you would be then required to pay under the law to redeem the land.” To this Beatty agreed. The transaction created an implied trust that will be enforced in a court of equity, the plaintiff having tendered the proper sum of money, demanded a deed, and the defendants having refused.

The demurrer should have been overruled.

The appellant presents in his argument a question upon the ruling of the court in excluding certain depositions. Whether there was error or not in this ruling we are unable to determine, inasmuch as the depositions are not in the record, nor any thing else, to show whether the ruling was correct or otherwise.

Reversed.  