AGNES M. THACKER and JOHN M. THACKER, Plaintiffs-Appellants, vs. ROBERT L. THACKER and FRANCES M. THACKER, BETTY WATERHOUSE, JOHN GREEN and JOAN GREEN GOLDAPP, EDNA ROBERTS, RICK THACKER, BRIAN THACKER, LAURA SAMUELS, a/k/a LAURA SAMMUELS and WILLIAM SAMUELS, GEORGE THACKER, DOUG THACKER, TIM THACKER and FARM CREDIT SERVICES OF AMERICA (FLCA), Defendants-Appellees.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-277 / 06-1766
Filed June 13, 2007
AGNES M. THACKER and JOHN M. THACKER,
Plaintiffs-Appellants,
vs.
ROBERT L. THACKER and FRANCES M. THACKER,
BETTY WATERHOUSE, JOHN GREEN and
JOAN GREEN GOLDAPP, EDNA ROBERTS,
RICK THACKER, BRIAN THACKER,
LAURA SAMUELS, a/k/a LAURA SAMMUELS
and WILLIAM SAMUELS, GEORGE THACKER,
DOUG THACKER, TIM THACKER and
FARM CREDIT SERVICES OF AMERICA (FLCA),
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, James E.
Kelley, Judge.
The plaintiffs appeal the district court’s order granting summary judgment
in favor of the defendants Robert and Frances Thacker and dismissing the claims
against these defendants. AFFIRMED.
Timothy L. Baumann, Christopher L. Surls, and William B. Norton of Wm.
B. Norton Law Firm, Lowden, for appellants Agnes Thacker and John Thacker.
Kenza B. Nelson and Eric M. Knoernschild of Stanley, Lande & Hunter,
P.C., Muscatine, for appellees Robert and Frances Thacker.
2
Thomas H. Burke of Whitfield & Eddy, P.L.C., Des Moines, for appellee
Farm Credit Services of America (FLCA).
Joan Goldapp, Milwaukee, Wisconsin, pro se.
Edna Roberts, Mt. Pleasant, pro se.
Laura Samuels, Muscatine, pro se.
Rick Thacker, Oakville, pro se.
Brian Thacker, Mt. Pleasant, pro se.
George Thacker, Keosauqua, pro se.
Doug Thacker, Muscatine, pro se.
Tim Thacker, Muscatine, pro se.
Betty Waterhouse, Mediapolis, pro se.
Heard by Sackett, C.J., and Vogel and Miller, JJ.
3
VOGEL, J.
Agnes Thacker and John Thacker, plaintiffs, appeal from the district
court’s order granting summary judgment to the defendants, Robert and Frances
Thacker. Because we agree with the district court that the statute of limitations
had run, thereby barring plaintiff’s attempt to bring a partition action as to certain
farm real estate, we affirm.1
The plaintiffs, Agnes and John Thacker, are brother and sister and coexecutors of their brother, James Thacker’s estate.
The defendant, Robert
Thacker, is also a brother of the plaintiffs and of the decedent; Frances is
Robert’s wife. For over thirty years Robert and James were engaged in a farm
partnership known as the “Thacker Brothers’ Partnership.”
The brothers
operated informally, without a written partnership agreement, sharing the income
and expenses of the partnership on a 50-50 basis. Both brothers worked on the
various farms they owned as tenants in common, but James was primarily
responsible for keeping the books and handling most business matters.
The Altekruse Farm was purchased on an installment contract in February
1972 by James and Robert. On March 7, 1987, the sellers gave a warranty deed
to “James A. Thacker and Robert L. Thacker” in full satisfaction of the contract.
On March 20, 1987 another warranty deed was executed by James, Robert, and
Frances, conveying “an undivided interest in” the Altekruse Farm to “Robert L.
Thacker and Frances M. Thacker, husband and wife.” In early 1994, James
1
The remaining defendants were named as part of the original petition, seeking to
partition other land owned in part by James. As those issues have been resolved, they
are not part of this appeal. In addition, we note the plaintiffs brought this action, not as
executors of James’s estate, but rather in their individual capacity.
4
mentioned to attorney John Hintermeister that he thought there was a mistake in
the deed to the Altekruse Farm. Hintermeister, who had drafted the 1987 deed,
wrote to Robert and Frances on April 5, 1994, conveying James’s concerns.
Hintermeister wrote again to Robert and Frances on October 10, 1995,
suggesting he meet with James, Robert, and Frances to discuss the concerns.
No such meeting ever occurred.
Additional correspondence between
Hintermeister and another attorney, James Keele, occurred in 1997; however,
once again, no action was taken. After James’s death in 2004, the plaintiffs
brought suit against Robert and Frances, seeking to partition certain real estate.
Part of this property included any alleged interest James held in the Altekruse
Farm at his death. Agnes and John claimed the 1987 conveyance to Robert and
Frances was a mistake and requested the district court to reform the deed.
Robert and Frances moved for summary judgment on several grounds, including
the running of the applicable statute of limitations. The district court granted the
motion, finding the 1987 warranty deed unambiguous, that it conveyed title to
Robert and Frances, and concluding the ten-year statute of limitations had run
prior to the filing of the petition. It also rejected the plaintiffs’ claims of adverse
possession, 2 laches, and estoppel by acquiescence. The plaintiffs appeal.
We review summary judgment motions for correction of errors at law.
Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). Summary
judgment is appropriate only when the entire record demonstrates that no
genuine issue of material fact exists and the moving party is entitled to judgment
as a matter of law. Id.
2
The plaintiffs do not assert error on appeal as to the adverse possession claim.
5
The plaintiffs contend that the district court erred when it found the statute
of limitations period had run and barred their partition action as to the Altekruse
Farm. Iowa Code section 614.17A governs plaintiffs’ claim and provides among
other things that, “an action shall not be maintained . . . in order to recover or
establish an interest in or claim to real estate if . . . (a) The action is based upon
a claim arising more than ten years earlier or existing for more than ten years.”
See also Iowa Code § 614.1(5) (1985) (setting forth a ten-year limitation period
for “the recovery of real property”); Gibson v. Gibson, 217 N.W. 852, 854-855
(Iowa 1928) (holding the test of whether a proceeding is an “action to recover
real estate” within the statute of limitations at Code 1927, § 11007(6) [currently
614.1(5)] is whether the petition seeks right to, title in, or possession of realty);
Tilton v. Bader, 181 Iowa 473, 475, 164 N.W. 871, 874 (1917) (noting that an
action for the “recovery of real property” need not be for possession, but is
sufficient if it is for an adjudication of the title). The district court found that the
ten-year period had run prior to the plaintiffs’ petition which was filed in
September 2005.
The heart of the plaintiffs’ claim in this case centers on the right and title, if
any, held by James in the Altekruse Farm at the time of his death in 2004. They
argue that the 1987 deed only intended to convey Robert’s interest to himself
and his wife, even though James was a grantor and signed the deed as such.
They claim any other result from the conveyance was a mistake and the deed
should be reformed. The deed at question was executed and recorded in March
1987, at which time James’s claim accrued as he then had the right to bring a
cause of action. See Weiser v. McDowell, 93 Iowa 772, 774, 61 N.W. 1094,
6
1096 (1895) (stating a cause of action does not “accrue” within statute of
limitations until plaintiff is entitled to sue thereon).
Therefore, the statute of
limitations ran as early as ten years later, March 1997.
Plaintiffs counter that the discovery rule applies, that is, the claim period
begins when the cause of action is discovered or when by the exercise of
reasonable diligence it should have been discovered, whichever is earlier.
Franzen v. Deere and Co., 334 N.W.2d 730, 732 (Iowa 1983). The record at
summary judgment indicates that James had actual knowledge of an alleged
problem or mistake with the deed conveying the Altekruse Farm as early as
March or April 1994.
He contacted attorney Hintermeister at that time to
investigate the situation, but no action was ever taken by James to pursue his
concerns. At that point James had actual knowledge that he may have an action
to recover an interest in the Altekruse Farm, thereby accruing his claim under the
discovery rule as of March or April 1994. See Garst v. Brutsche, 129 Iowa 502,
504, 105 N.W. 452, 453 (1905) (holding where a plaintiff, knowing of a mistake in
the description of a deed but remained silent for nearly sixteen years, was barred
by limitation provision of ten years for the recovery of real property at code
sections 3447, 3448 [currently 614.1(5)]). The ten-year period would thus have
run in March or April 2004, barring any claim to quiet title or as later brought by
the plaintiffs in September 2005 in a partition action. Even assuming the later
date of 1994, the district court correctly granted summary judgment as a matter
of law for the defendants based upon the limitation period of Iowa Code section
614.17A. We therefore affirm.
7
The remaining issues as to laches, estoppel, and the alleged ambiguity of
the deed either lack merit or are rendered moot by our decision, affirming the
district court on the statute of limitations issue.
AFFIRMED.
Vogel, J. and Miller, J. concur. Sackett, C.J., dissents.
8
SACKETT, C.J.
I respectfully dissent. I would reverse and remand.
The question in this appeal is what interests did James A. Thacker and
Robert and Frances Thacker have at the time of James’s death in 2004 in
approximately 160 acres in Muscatine County, Iowa.
Plaintiffs, two heirs of
James, filed this action contending James had an interest in this land at the time
of his death.
Defendants Robert and Frances Thacker claim James had no
interest. They filed a motion for summary judgment claiming that because James
executed a warranty deed on March 20, 1987, they owned the land free and
clear of any claims by James’s estate. The district court sustained the motion,
finding for a number of reasons that James had no interest in the land at the time
of his death or if he did, the statute of limitation precluded the plaintiffs from
claiming James’s interest.
The majority has affirmed, finding the statute of
limitation has run on the claim made by plaintiffs. For reasons set forth below, I
disagree. I would reverse and remand.
Summary judgment is appropriate only when no genuine issue of material
fact exists and the moving party is entitled to a judgment as a matter of law. No
fact question exists if the only dispute concerns the legal consequences flowing
from undisputed facts. In re Estate of Beck v. Engene, 557 N.W.2d 270, 271
(Iowa 1996).
It is undisputed that decedent and Robert farmed in a fifty-fifty partnership
for a number of years.
As partners they purchased the land in question on
contract in 1972 and on March 7, 1987, the sellers in performance of the contract
9
executed and delivered a warranty deed for the property to “James A. Thacker
and Robert L. Thacker.”
Then on March 20, 1987, a warranty deed for the property from “James A.
Thacker and Robert Thacker and Frances M. Thacker, husband and wife” was
executed and delivered to “Robert L. Thacker and Frances M. Thacker, husband
and wife” conveying “an undivided interest in” the property. (emphasis supplied).
The deed further provided: “The actual consideration for this conveyance is less
than $500.00, and it is exempt from Declaration of Value under exemption #11.” 3
No other exemption was sought.
This deed is ambiguous. First, at the time the deed was executed James
owned an undivided one-half interest in the property. The deed only conveyed
“an undivided interest”. The interest conveyed, if any, is not defined. Therefore
one cannot conclude that the deed conveyed either an undivided one-half
interest or all of James’s interest.
Second, the exemption from transfer tax
referenced in the deed applies only to the transfer of Robert’s interest to Frances,
his wife. 4 This raises the question of whether James signed the deed only to
affirm Robert’s transfer of Robert’s undivided one-half interest to an undivided
one-fourth interest in Robert and an undivided one-fourth interest in Frances.
3
Iowa Code § 428A.2(11) (2007). Exceptions
The tax imposed by this chapter shall not apply to:
...
11. Deeds between husband and wife, or parent and child, without actual
consideration. A cancellation of indebtedness alone which is secured by the
property being transferred and which is not greater than the fair market value of
the property being transferred is not actual consideration within the meaning of
this subsection.
2
Id.
10
Third, the deed’s unclear language leads to the concern of why Frances joined in
the transfer if the deed were merely to transfer James’s interest to her and
Robert.
To determine what interest was conveyed by that ambiguous March 20,
1987 deed one must resort to extrinsic evidence.
That said, I also disagree with the majority’s conclusion that the statute of
limitation has run.
James’s heirs are not seeking to establish or recover an
interest in land in which Robert and Frances have title to the entire fee. For the
court to find Frances and Robert have title to the entire fee, the court would need
to add words to the deed providing that James transferred an undivided one-half
interest. A court can neither put words into a deed that are not there nor put a
construction on the words directly contrary to the plain sense of them. Schenck
v. Dibel, 242 Iowa 1289, 1291, 50 N.W.2d 33, 35 (1951). The March 20 deed did
not by its terms convey all of James’s undivided one-half interest to Robert and
Frances. The title as it now stands shows that James, at the time of his death,
had not divested himself of all of his interest.
This is an action to clarify an interest rather than to establish or recover an
interest. Furthermore, despite the time period that has passed since the March
20 deed was executed and delivered, there can be no claim of adverse
possession of James’s interest by Robert and Frances.
Since the evidence
shows that James and Robert treated the property as being owned by the
partnership from the time before the deed was executed through the time of
James’s death in 2004, the applicable period necessary to prove adverse
possession cannot be shown.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
