
    Zane Spurrier v. William McClintock, Defendant, Appellant, Mabel H. Baker, Intervener, Appellant.
    Fraud: setting deed aside. A widow made deed to F. Part of the land belonged to a minor and a bond was given that the minor should'deed upon attaining majority. The land passed to M and the- bond was acquired by ’plaintiff. When the minor attained majority she desired not only to relieve the makers of the bond from liability, but, as well, to perfect the title of M, to whom the land had passed Plaintiff fraudulently induced her to make deed to him, representing that by so doing she would quiet the title of M. Held, the deed should be set aside.
    
      Appeal from Taylor District Court. — Hon. W. H. Ted-ford, Judge.
    Friday, December 17, 1897.
    
      Action of partition. Decree for plaintiff. All parties appeal.
    
    Reversed.
    
      Charles Thomas and Maxwell & Winter for appellants McClintook and Baker.
    
      Crum & Haddock and W. M. Jackson for plaintiff.
   Kinne, C. J.

I. Prior to January 21, 1888, Sarah S. Sargent (widow) was the ownler Of the northeast quarter of -section 5, township 69, range 32, in Taylor -county, Iowa, except an undivided one-eleventh of the same, which her minor daughter, Mabel H. Sargent, owned by inheritance from her father. On January 21, 1888, Mrs. Sargent conveyed the whole -of said land to George H. Finley, by warranty deed -containing full covenants, except as to a certain mortgage incumbrance thereon. When this deed was made, all of the parties to the transaction understood that said daughter was the owner of the legal title to an undivided one-eleventh interest in said land, and that, as soon as she arrived of age, it was expected .she would fulfill her mother’s contract. So believing, Mm Sargent, .as principal, and John Knox, as surety, at the time of making- the deed, executed and delivered to Finley a bond by which they bound themselves unite “George H. Finley, Ms heirs, executors, legal representatives, or grantees, in the penal sum of two hundred and fifty dollars.” The condition of said bond was as. follows: “Whereas, the above-bounden Sarah S. Sargent has this day made warranty deed to the said George H. Finley, conveying the northeast quarter of section five, towhship -sixty-nine, range tMrty-two., in Taylor county, Iowa; and whereas., the above-bounden Sarah S. Sargent has one child, viz. Mabel H. Sargent, who at this date has not arrived at her majority: Now, if, at the time the said Mabel H. Sargent shall arrive sit her majority, she will, for the consideration of one dollar, quit-claim her interest in above-described land to said George H. Finley, his heirs, executors, legal representatives, or grantees, then and in that case this bond to be null and void, and otherwise to be and remain in full force and effect.” On the same day, and after the execution 'and delivery of the deed and bond by Mrs. Sargent to Finley, the latter executed a mortgage upon the whole tract, for two thousand dollars, to Monmouth College. Said mortgage contained full covenants as to warranty, title, etc. Afterwards Finley became insolvent. Still later the college foreclosed its said mortgage, and procured a decree, upon which an execution issued; and the premises were sold thereunder, on June 25, 1890, to the 'appellant McClintock. Thereafter McClintock purchased Finley’s equity of redemption in said land. June 27,1891, the sheriff of the county executed and delivered to McClintock a sheriff’s deed for said land. McClintock took possession of the land, and has ever since held it. In September, 1895, the daughter, Mabel, attained her majority, by 'her intermarriage with one Frank D. Baker. Mabel desired to fulfill her mother’s contract, and to release her and her surety from liability upon the bond, or on the covenants of the deed. Knox, the snrety, was an uncle of Mabel. Plaintiff induced Mabel and -her husband to believe that a deed to Mm would, in effect, be the same as to Finley; and it was so executed and delivered to plaintiff, without any consideration paid, except the nominal sum of one dollar, though the deed contained an expressed consideration of two hundred and fifty dollars. Under this deed, plaintiff claimed to own an undivided one-eleventh of the land, and began this action for partition thereof. McClintock answered, claiming all of the land; that the deed to plaintiff was procured by fraud, connivance, and deception of both Finley and plaintiff, 'and for the purpose of cheating and defrauding McOlintoek, and of casting a cloud upon Ms title. Mabel- H. Baker, intervened, alleging the execution of the deed by her and her husband in fulfillment of the provisions of the bond, and that, by the fraud and misrepresentations of plaintiff and Finley, she wais induced to make the deed without any consideration, other than one dollar and the delivery of the bond. She offered- to return the one dollar, and- asked that the deed be set aside, and that McOlinto ek’-s title be quieted. A decree was entered awarding plaintiff -one-eleventh of the land, subject to a lien of two hundred and- fifty dollars against the same in favor of McOlintoek. Referees were appointed to- divide or sell the land, and •other orders were made. From the decree, all parties appeal.

II. We first -consider the app eal of McOlinto ck and of the intervener. It is clear that the -object of giving the bond was to make good to- Finley, or to his grantees, the title to the land heretofore described. True it is, that, on arriving at her majority, Mabel might refuse to convey -her interest in the land to either Finley or Ms grantee, in which event the penalty of the bond would be the measure of the liability of the makers of it. But what are the facts? Mabe-l and her husband, as the evidence shoiws, intended, by the conveyance which they made, to not only take up the bond, and thus release the obligor s therein from any liability thereoni, but likewise, by the same act, t-o- perfect the title to- the land to McOlintoek, who had acquired Finley’s interest in the land. She supposed that she was accomplishing this, in executing the deed to plaintiff. Representations to that effect were made to- her, on the falith of which she executed and delivered the deed. We think it is clear that she would never have -executed the deed to plaintiff, had she not supposed that the result would- be as we have stated. She was, then, induced to make title to plaintiff by reasons of representations which- were false, and, no doubt, made with the Intent to deceive her. The plaintiff was fully advised of the situation. He knew, when he purchased the bond, of its object, and purposely and fraudulently induced the execution of the deed to himself. Whether he could, under any circumstances, claim iany right under the bond, by assignment or otherwise, we need not determine. Certain it is that ■he could not — at least, as against 'his grantor — acquire title by reason of fraudulent representations. The deed should 'be set aside, and, as both Mabel and McClintock ask that the title be quieted in the latter, we think that the decree should have so ordered. The intervener and the defendant may, if they so elect, have a decree in this court setting aside and canceling said deed, and quieting title to the land ini controversy in the defendant, and the plaintiff will pay the costs, or the case will be remanded for an entry of such a decree in the lower court. We do not find it necessary to- consider other questions discussed.

III. As to plaintiff’s appeal:. The parties, stipulated that, in case plaintiff was entitled to' recover, he should receive the undivided on'e-eleventh of the land. The trial court apparently overlooked this stipulation, and made a charge of two hundred and fifty dollars against the one-eleventh interest, title to Which was found to' he in the plaintiff. From this decree* plaintiff 'appealed. As we find that plaintiff is not entitled to any relief, the decree below was erroneous. As to both appeals, therefore, the cause must be reversed.  